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DEBATES, 


IN  THE 


SENATE  OF  THE  UNITED  STATES, 


ON    THE 


JUDICIARY. 


J  5  63      7 


Jaldwin,  Abraham  (1754-1807),  of  Georgia,  was  chaplain  in  Gem 
ene's  army  from  1777  till  the  close  of  the  war.  As  a  member  of 
islature  of  Georgia  he  was  the  originator  of  the  University  of  Geoi 
was  its  first  president.  Was  in  Congress  from  1785  to  1799,  a  mem 
he  Federal  Constitutional  Convention  of  1787,  and  U.  S.  Senator  fi 
9  till  his  death. 


DEBATES 


IN  THE 


SENATE  OF  THE  UNITED  STATES 


ON  THE 


JUDICIARY, 


DURING  THE  FmST  SESSION  OF  THE  SEVENTH  CONGRESS  s 

ALSO, 

THE  SEVERAL  MOTIONS,  RESOLUTIONS,  AND  VOTES, 
TAKEN  UPON  THAT 

MOMENTOUS  SUBJECT; 

AUD 

A  COMPLETE  LIST  OF  THE  YEAS  AND  NAYS, 
AS  ESTERED  ON  THE  JOURNALS. 


'U 


■^n/\^- 


ENTERED  ACCOUOING  TO  LAW. 


.♦ 

M 


PHILADELPHIA  I 

FOR  E.  BRONSON,  PRINTED  BY  THOS.  SMITH. 
1802. 


P 


m 


JK 

isn 

AS" 


DEBATE  ON  THE  JUDICIARY  BILL. 


THE  great  queftion  on  the  independence  of 
the  judicial  department  of  our  government  having 
been  decided  in  Congrefs,  it  was  thought  expedient 
to  coIle£l  and  publifh  the  interefting  debate  which 
took  place  on  that  fubjeft  in  the  Senate  of  the  Uni- 
ted States.  It  is  here  prefented  to  the  public  cor- 
reftly.  Great  part  of  it  has  indeed  appeared  already 
in  the  National  Intelligencer,  but  the  party-attach- 
ments of  the  editor  of  that  paper,  arc  too  ftrong, 
and  his  party-conne61ions  too  influential,  to  permit 
him  always  to  fpeak  the  whole  truth.  In  fome  in- 
flances,  (perhaps  from  mifapprehenfionj  the  argu- 
ments of  his  friends  have  been  fo  corredlcd,  as  to 
elude,  in  fome  meafure,  the  anfwers  which  were 
given.  Where  they  have  been  merely  embeilifhed, 
it  is  not  thought  nccelTary  to  alter  them  from  the 
flate  in  which  he  difplayed  them.  An  intelligent 
friend,  who  was  prefent,  and  who  has  compared  the 
different  publications  with  his  own  notes,  has  fur- 
niftied  the  materials  for  this  pamphlet,  the  editor  of 
which  does  not  prefume  to  offer  an  opinion,  much 

B 


483108 


Id's  an  argument,  of  his  own.  He  publiflies  it  with 
the  view  to  profeflional  emolument,  and  in  the  hope 
of  being  ufcful  to  his  country. 

Every  independent  American  will  doubtlefs  wifh 
to  poflefs  the  means  of  deciding  for  himfelf  on  this 
important  fubje£l.  Many  years  may  pafs  away  be- 
fore the  queftions  which  have  now  been  flirred  fhall 
be  finally  fettled.  During  their  progrefs,  it  may 
not,  perhaps,  be  ufelefs  to  the  citizens  of  this  cxtcn- 
five  country,  to  bring  the  affertions  of  prominent 
chara£lers  to  the  touch-ftone  of  experience  ;  and 
the  following  pages  will  afford  the  means  as 
to  thofe  who  have  feats  in  the  Senate.  We  cannot 
promife,  but  we  are  not  without  the  hope  of  being 
able  to  offer,  at  a  future  day,  the  debates  on  the 
faracfubjeft  in  the  Houfe  of  Reprefentativcs. 

On  the  4th  day  of  January,  1802,  Mr.  Breck* 
ENRiDGE  gave  notice,  that  he  would,  on  the  6th, 
move  for  the  order  of  the  day,  on  that  part  of  the 
Prefident's  mefTage*  which  refpefts  the  judiciary 
fyftem,  and  informed  the  houfe  he  ihould  propofe  a 

"  The  part  alludsd  to  is  as  follows :  "  the  judiciary  system 
oFtlic  United  States,  and  especially  that  portion  of  it  recently 
crcfted,  will  of  course  present  itself  to  the  contemplation  of  Con- 
gress ;  and  that  they  may  be  able  to  judge  of  the  proportion 
■which  the  inllitution  bears  to  the  business  it  has  to  perform, 
I  have  caused  to  be  procured  from  the  several  states,  and  now 
lay  before  Congress,  an  exadl  statement  of  all  the  causes  decid- 
ed since  the  firft  establishment  of  the  courts,  and  of  those  which 
were  depending  when  additional  courts  and  judges  were  brought 
in  to  their  aid." 


repeal  of  the  law  paffed  on  that  fubjcft  the  lafl  (cC- 
fion,  and  of  certain  fcftions  in  a  preceding  law.  On 
the  6th  he  made  the  following  motion  : 

"  Refolved,  That  the  aft  of  Congrefs,  pafTed 
on  the  13th  day  of  February,  1801,  entitled  Jti 
Ad  to  provide  for  the  more  convenient  organization  of 
the  courts  of  the  United  States^  ought  to  be  repealed.^' 

He  faid,  he  fhould,  for  the  prefent,  wave  the  re- 
mainder of  what  he  had  intended  to  move.  The 
confideration  of  his  motion  was  poflponed  to  the 
eighth. 

On  Friday  the  8  th  of  January,  he  opened  the 
debate  as  follows : 

It  will  be  expefted  of  me,  I  prefume,  fir,  as  I  in- 
troduced the  refolution  now  under  confideration,  to 
aiBgn  my  reafons  for  wiftiing  a  repeal  of  this  law. 
This  I  fliall  do  ;  and  iliall  endeavour  to  fliew, 

I.  That  the  law  is  unneceflary  and  improper, 
and  was  fo  at  its  paflage  ;  and 

II.  That  the  courts  and  judges  created  by  it, 
can  and  ought  to  be  aboliihed. 

I  ft.  That  the  a6l  under  confideration,  was  un- 
neceflary and  improper,  is  to  my  mind,  no  difficult 
tafk  to  prove.  No  increafe  of  courts  or  judges 
could  be  neceflary  or  juftifiable,  unlefs  the  exifting 
courts  and  judges  were  incompetent  to  the  prompt 
and  proper  difcharge  of  the  duties  configned  to 
them.  To  hold  out  a  fhew  of  litigation,  when  in 
faft  little  exifts,  muft  be  impolitic  ;  and  to  multiply 
cxpenfive  fyftems,  and  create  hofts  of  expenfive  of- 


ficcrs,  without  having  experienced  an  aftual  necef- 
fity  for  them,  mud  be  a  wanton  wade  of  the  public 
treafure. 

The  document  before  us  fliews,  that  at  the  paf- 
fage  of  this  aft,  the  exifting  courts,  not  only  fromi 
their  number,  bu^frora  the  fuits  depending  before 
them,  were  fully  competent  to  a  fpeedy  decifion  of 
thofe  fuits — It  Ihews,  that  on  the  1 5th  day  of  June 
laft,  there  were  depending  in  all  the  Circuit  Courts, 
(that  of  Maryland  only  excepted,  whofe  docket  wc 
have  not  been  furniflied  with,)  1539  fuits.  It  (hews 
that  8276  fuits  of  every  defcription  have  come  be- 
fore thofe  courts,  in  1  o  years  and  upwards.  From 
this  it  appears,  that  the  annual  average  amount  of 
fuits  has  been  about  800. 

But  fundry  contingent  things  have  confpired  to 
fwcll  the  circuit  court  dockets.  In  Maryland,  Vir- 
ginia, and  in  all  the  fouthern  and  fouth-ueflern 
ftates,  a  great  number  of  fuits  have  been  brought 
by  Britifli  creditors :  this  fpecies  of  controverfy  is 
nearly  at  an  end. 

In  Pennfylvania,  the  docket  has  been  fwelled  by 
profecutions  in  confequence  of  the  weftern  infur- 
rcftion,  by  the  didurbances  in  Bucks,  and  North- 
ampton Counties ;  and  by  the  Sedition  Aft.  Thefe 
I  find  amount  in  this  State  to  240  fuits. 

In  Kentucky,  non-refidcnt  land  claimants  have 
gone  into  the  Federal  Court  from  a  temporary  con- 
venience ;  becaufcj  until  within  a  year  or  t^o  paft, 
there  cxilled  no  court  of  general  jurifdiftion  co-ex- 


tcnfivc  with  the  whole  State.  I  find  too,  that  of  the 
fix  hundred  and  odd  fuits  which  haVe  been  com- 
menced there,  196  of  them  have  been  profecuiiond 
under  the  laws  of  the  I  nited  States. 

In  mod  of  the  States  there  have  been  profccu- 
tions  under  the  Sedition  Aft.  '1  his  fource  of  litiga- 
tion is,  I  ttuft;  for  ever  dried  up.— And,  l^ftly,  it\  all 
the  States  a  number  of  fuits  have  arifett  under  thi 
Excife  Law  ;  which  fource  of  controverfy,  will,  I 
hope,  before  this  feflion  terminates,  be  alfo  dried 
up. 

But  this  fame  document  difclofes  another  im- 
portant fa£l ;  which  is,  that  nevcrthelefs  all  thefd 
untoward  and  temporary  fources  of  federal  adjudi- 
cation, the  fuits  in  thofe  courts  are  dtcreajing  ;  for 
from  the  dockets  exhibited  (except  Kentucky,  and 
TenneiTee,  whofe  fuits  are  fummed  up  in  the  aggre- 
gate) it  appears,  that  in  1799  there  were  1274} 
and  in  1800  there  were  687  fuits  commenced  j 
Ihewing  a  decreafe  of  587  fuits. 

Could  it  be  neceffary  then  to  increafe  Goutts 
when  fuits  were  decr6afmg  ?  Could  it  be  neceffary 
to  multiply  judges,  when  their  duties  Were  dimini(h- 
ing  ?  And  will  I  not  bejuftified,  therefore,  in  affirm- 
ing, that  the  law  was  unntceffary,  and  that  Congrefs 
afted  under  a  miflaken  impreflion,  when  they  mul- 
tiplied coiirts  and  judges  at  a  time  when  litigation 
\Vas  aftually  decreafing. 

But,  fir,  the  decreafe  of  bufinefs  goes  a  fmlll 
way  in  fixing  my  opinion  on  this  fubjcft,     I  am  in* 


8 

clined  to  think,  that  fo  far  from  there  having  been 
a  nccefijty  at  this  time  for  an  increafc  of  courts  and 
judges ;  that  the  time  never  will  arrive,  when  Ame- 
rica will  (land  in  need  of  38  federal  judges.  Look 
fir,  at  your  conflitution,  and  fee  the  judicial  power 
there  configned  to  federal  courts,  and  ferioufly  aflc 
yourfelf,  can  there  be  fairly  extrafted  from  thofe 
powers  fubje£ts  of  litigation  fufEcient  for  6  fupremc 
and  32  inferior  court  judges  ? — To  me  it  appears 
impofTible. 

The  judicial  powers  given  to  the  federal  courts 
were  never  intended  by  the  conftitution  to  embrace, 
exclufively,  fubjefts  of  litigation,  which  could  with 
propriety  be  left  with  the  State  courts.  Their  ju- 
rifdi^lion  was  intended  principally  to  extend  to  great 
national  and  foreign  concerns.  Except  cafes  arif- 
ing  under  the  laws  of  the  United  States,  I  do  not 
at  prefent  recoUe^l  but  three  or  four  kinds  in 
which  their  power  extends  to  fubje£ls  of  litigation, 
in  which  private  perfons  only  are  concerned.  And 
can  it  be  poiTible,  that  with  a  jurifdiftion  em- 
bracing fo  fmall  a  portion  of  private  litigation,  in 
great  part  of  which  the  State  courts  might,  and 
ought,  to  participate,  that  we  can  (land  in  need  of 
38  judges ;  and  expend  in  judiciary  regulations  the 
annual  fum  of  137,200  dollars  ? 

No  other  country,  whofc  regulations  I  have 
any  knowledge  of,  fumifhes  an  example  of  a  fyftem 
fo  prodigal  and  extenfive.  In  England,  whofc 
courts  arc  the  boaft,  and  faid  to  be  the  fccurity  of 


the  rights  of  the  nation,  every  man  knows,  there 
are  but  12  judges  and  3  principal  courts.  Thefe 
courts  embrace,  in  their  original  or  appellate  jurif- 
diftion,  almoft  the  whole  circle  of  human  concerns. 

The  king*s  bench  and  common  pleas,  which 
confift  of  4  judges  each,  entertain  all  the  common 
law  fuits  of  40s.  and  upwards,  originating  among  9 
millions  of  the  mod  commercial  people  in  the  world. 
They  moreover  revife  the  proceedings  of  not  only 
all  the  petty  courts  of  record  in  the  kingdom,  even 
down  to  the  courts  of  piepondre ;  but  alfo  of  the 
court  of  the  king's  bench  in  Ireland  :  and  thefe  fu- 
preme  courts,  after  centuries  of  experiment,  are 
found  to  be  fully  competent  to  all  the  bufinefs  of 
the  kingdom. 

I  will  now  inquire  into  the  power  of  Congrefs, 
to  put  down  thefe  additional  courts  and  judges. 

I  ft.  As  to  the  courts. — Congrefs  are  empower- 
ed by  the  conftitution  "  from  time  to  time,  to 
ordain  and  eftablifli  inferior  courts.'*  The  a£l:  now 
under  confideration,  is  a  legillative  conjlrud'ion  of 
this  claufe  in  the  conftitution,  that  Congrefs  may 
abelijh  as  well  as  create  thefe  judicial  officers;  be- 
caufe,  it  does  exprefsly  in  the  27  th  fedion  of  the 
aft,  abolijh  the  then  exifting  inferior  courts,  for  the 
purpofe  of  making  way  for  the  prefent.  This  con- 
ftru£lion  I  contend  is  correal: ;  but  it  is  equally  per- 
tinent to  my  objeft,  whether  it  be,  or  be  not.  If 
it  be  correct,  then  the  prefent  inferior  courts  may 
be  aboliftied  as  conftitutionally  as  the  laft  j  if  it  be 


10 

not,  then  the  law  for  abolifhing  the  former  courts, 
and  eftabliftiing  the  prcfent,  was  unconftitutional  and 
confequently  rcpealablc. 

But,  independent  of  this  legiflative  conftruftion, 
OB  which  I  do  not  found  my  opinion,  nor  mean  to 
^ely  my  argument,  there  is  little  doubt  indeed,  ia 
Oiy  mind,  as  to  the  power  of  Congrefs  on  this  law. 
The  firfl  fe<5lion  of  the  3d  art  vefts  the  judicial 
power  of  the  United  States  in  one  fupreme  court 
SLad/ucb  inferior  courts  as  Congrefs  may  from  fime 
to  time,  ordain  and  eftablifli.  By  this  ciaufe  Con- 
gress may,  from  time  to  time,  eftablidi  inferior 
courts  ;  but  it  is  clearly  a  difcretional  power,  and 
they  ffifjy  not  eftabiifti  them.  'I  he  language  of  the 
conftitution  is  very  different  when  regulations  are 
not  left  difcretional.  For  example  : — ''  The  trial, 
fays  the  conftitution,  of  all  crimes,  (except  in  cafes 
of  impeachment)  Jhali  be  by  jury  :  reprefentatives 
and  direct  taxes  /ha/I  be  applied  according  to  num- 
bers. All  revenue  h\\\s /ha/I  originate  in  the  Houfe 
of  Reprefentatives,  &c.*'  It  would,  therefore,  in 
my  view,  be  a  pervcrfion  not  only  of  language,  but 
of  intellcft,  to  fay,  that  although  Congrefs  may 
from  time  to  time  eftablidi  inferior  courts,  yet, 
when  eftabliflied,  that  they /hull  noi  be  aboliftied  by 
a  fubfequent  Congrefs  poffcfCng  equal  powers.  It 
"would  be  a  paradox  in  legiflation. 

2d.  As  to  the  judges. — The  judiciary  depart- 
ment is  fo  conftrufted  as  to  be  fufficiently  fecured 
againft  the  improper  influence  of  either  the  execu- 


11 

tive  or  legiflatlve  departments.      The  courts  arc 
organized  and  eflablifhed  by  the  legiflature,  and  the 
executive   creates   the  judges.    Being   thus  orga- 
nized, the  conftitution  affords  the  proper  checks  to 
fecure  their  honefty  and  independence  in  office.    It 
declares  they  (hall  not  be  removed  from  office  dur- 
ing good  behaviour  ;  nor  their  falaries  diminiflied 
during  their  continuance  in  office.     From  this  it  re- 
fuhs,  that  a  judge,  after  his  appointment,  is  totally 
out  of  the  power  of  the  Prefident,  and  his  falary 
fecured  againft   legiflative   diminution,  during  his 
continuance  in   office.     The   firfl  of  thefe  checks, 
which  protefts  a  judge  in  his  office  during  good 
behaviour,    apphes    to    the  President   only,    who 
would  otherwife  have  poffefled  the  power  of  remov- 
ing him,  like  all  other  officers,  at  pleafure ;  and  the 
other  check,  forbidding  a  diminution  of  their  fala- 
ries, applies  to  the  legiflature  only.     They  are  two 
feparate  and  diftinft  checks,  furnifhed  by  the  con- 
ftitution  againfl  two  diftinft  departments  of  the  go- 
vernment ;  and  they  are  the  only  ones  which  are  or 
ought  to  hav€  been  furniflied  on  the  fubje^l. 

But,  becaufe  the  conftitution  declares  that  a 
judge  Ihall  hold  his  office  during  good  behaviour^ 
can  it  be  tortured  to  mean  that  he  fliall  hold  his 
office  after  it  is  aboliffied  ?  Can  it  mean  that  his 
tenure  fliould  be  limited  by  behaving  well  in  an 
office,  which  did  not  exift  ?  Can  it  mean  that  an 
office  may  exift  although  its  duties  are  extin£l  ?  Can 
it  mean,  in  fhort,  that  the  ihadow,  to  wit,  the  judge 

C 


12 


can  remain,  when  the  fubflancc,  to  wit,  the  office, 
is  removed  ?  It  mud  have  intended  all  thcfe  abfur- 
dities,  or  it  mufl  admit  a  conftruflion  which  will 
avoid  them. 

That  conftruclion  obvloufly  is,  that  a  judge 
fliould  hold  an  exifling  office^  fo  long  as  he  did  his 
duty  in  that  office  ;  and  not  that  he  (hould  hold  an 
office  that  did  not  exift,  and  perform  duties  not  pro- 
vided by  )aw.  Had  the  conflru6lion  which  I  con- 
tend againil,  been  contemplated  by  thofe  who  fram- 
ed the  conftitution,  it  would  have  been  ncccffiiry  to 
have  declared,  expliciHy,  that  judges  fliould  hold 
their  offices  andfalarics  during  good  behaviour. 

Such  a  conflru£lion  is  not  only  irrcconcileable 
with  reafon  and  propriety,  but  is  repugnant  to  the 
principles  of  the  conflitution.  It  is  a  principle  of 
our  conflitution,  ac  well  as  of  common  honefty, 
that  no  man  lliall  receive  public  money,  but  in  confi- 
deration  of  public  fervices.  Sinecure  offices,  there- 
fore, are  not  permitted  by  our  laws  or  conflitution. 
By  this  conflru^lion,  complete  fmecurc  offices  will  be 
created  ;  hofls  of  conllitutional  penfioners  will  be 
fettled  on  us,  and  we  cannot  calculate  how  long. 
This  is  really  creating  a  new  fpecies  of  public  debt, 
not  like  any  other  of  our  debts,  we  cannot  difcharge 
the  principal  at  any  fixed  time.  It  is  worfe  than  the 
deferred  flock  j  for  on  that  you  pay  an  annual  in* 
tcrcfl  qniy,  and  the  principal  is  redeemable  at  a 
given  period.  But  here  you  pay  an  annual  princi- 
pal, and  that  principal  irredeemable  except  by  the 


IS 

will  of  Providence.  It  may  fuit  countries  where 
public  debts  are  confidered  as  public  bleflings  j  for 
in  this  way  a  people  might  foon  become  fuperlative- 
]y  bleffed  indeed. 

Let  me  not  be  told,  fir,  that  the  falaries  in  the 
prefent  cafe,  are  inconfiderable,  and  ought  not  to 
be  withheld ;  and,  that  the  doftrine  is  not  a  danger- 
ous one.  I  anfwer,  it  is  the  principle  I  contend 
againft  ;  and  if  it  is  heterodox,  for  one  dollar,  it  is 
equally  fo  for  a  million. — But,  I  contend,  the  prin- 
ciple, if  once  admitted,  may  be  extended  to  deftrucr 
tiye  lengths.  Suppofe  it  fhould  hereafter  happen, 
that  thofe  in  power  fliould  combine  to  provide 
handfomcly  for  their  friends,  could  any  way  fo 
plain,  eafy,  and  eifeftual,  prefent  itfelf,  as  by  cre- 
ating courts,  and  filling  them  with  tho  e  friends  ? 
Might  not  fixty,  as  well  as  fixteen,  with  falaries  of 
twenty  thoufand,  inflead  of  two  thoufand  dollars, 
be  provided  for  in  this  way  ? 

The  thing,  I  truft,  will  not  hap^^en.  It  is  pre- 
fuming  a  high  degree  of  corruption  ;  but  it  might 
happen  under  the  conftrudiion  contended  for  ;  as 
the  conftitution  prefumes  corruption  may  happen  In  | 
any  department  of  the  government,  by  the  checks 
it  has  furniflied  againfl  it,  and  as  this  conftruftion 
does  open  a  wide  door  for  corruption,  it  Is  but  fair 
reafoning,  to  iliew  the  dangers  which  may  grow  out 
of  it ;  for  in  the  conflruftion  of  all  inflruments,  that 
which  will  lead  to  inconvenience,  mifchief,  orabfur- 
dlty,  ought  to  be  avoided.  This  do£lrine  has  ano- 
ther difficulty  to  reconcile  :— after  the  law  is  repeal- 


14 

cd,  they  arc  cither  judges  or  they  are  not.  If  they 
are  judges,  they  can  be  impeached  ;  but  for  what  ? 
For  mal'feafance  in  office  only.  How,  I  would  afk, 
can  they  be  impeached  for  mal-fcafancc  in  office^ 
when  their  offices  are  abolifhed  ?  They  are  not 
officers,  but  ftill  they  are  entitled  to  the  emoluments 
annexed  to  an  office.  Although  they  are  judges, 
they  cannot  be  guilty  of  mal-feafance,  becaufe  they 
have  no  office.  They  arc  only  quafi  judges,  fo  far 
as  regards  the  duties,  but  r^^/ judges,  fo  far  as  re- 
gards ihcf alary.  It  mufl:  be  iht /alary,  then,  and 
not  the  duties,  which  conftitute  a  judge.  For  my 
part,  I  do  not  know  under  what  clafs  of  things  to 
range  them,  or  what  name  to  give  them.  They  are 
unacknowledged  by  the  letter,  fpirit,  or  genius  of 
our  conftitution,  and  arc,  to  me,  non-defcripts. 

There  is  another  difficulty,  under  this  conftruc- 
tion,  ftill  to  encounter,  and  which  alfo  grows  out 
of  the  conftitution.  By  the  conftitution,  a  new  ftate 
may  be  formed  by  the  jnnftion  of  two  or  more 
flates,  with  their  aflent,  and  that  of  Congrefs.  If 
this  doftrine,  once  a  judge  and  always  a  judge,  be 
correft,  what  would  you  do,  in  fuch  an  event,  with 
the  diftricfl  judges  of  the  ftates  who  formed  that 
junftion  ?  Both  would  be  unneceiTary,  and  you 
would  have  in  a  fmgle  ftate,  two  judges  of  equal  and 
concurrent  jurifdiftion  ;  or  one  a  real  judge,  with 
an  office,  and  another  a  quafi  judge,  without  an 
office.  The  ftates  alfo,  forming  fuch  junftion,  would 
be  equally  crabarrafTed  with  their  ftate  judges  j  for 


15 

the  fame  conftruftion  would  be  equally  applicable 
to  them.  ; 

Upon  this  conftruftion,  alfo,  an  infallibility  is 
predicated,  which  it  would  be  arrogance  in  any  hu- 
man inftitution  to  aflurac,  and  which  goes  to  cut  up 
legiflation  by  the  roots.  We  ftiould  be  debarred 
from  that,  which  is  indulged  to  us  from  a  higher 
fource,  and  on  fubjefts  of  higher  concern  than  le- 
giflation, I  mean  a  retraftion  from,  and  correftion 
of  our  errors.  On  all  other  fubjefts  of  legiflation, 
we  are  allowed,  it  feems,  to  change  our  minds,  ex- 
cept on  judicial  fubje<fts,  which,  of  all  others,  i$ 
the  moft  complex  and  difficult.  I  appeal  to  our  own 
ftatute  book  to  prove  this  difficulty ;  for,  in  ten 
years,  Congrefs  have  pajQTed  no  lefs  than  twenty-fix 
laws  on  this  fubjeft. 

I  conceive,  fir,  that  the  tenure  by  which  a  judge 
holds  his  office,  is  evidently  bottomed  on  the  idea  of 
fecuring  his  honefty  and  independence,  whild  exer- 
cifing  his  office.  The  idea  was  introduced  in  Eng- 
land, to  counteract  the  influence  of  the  crown  over 
the  judges ;  but  if  the  confl:ru£tion  now  contended 
for,  fliall  prevail,  we  ftiall  in  one  miftaken  imitation 
of  this  our  favourite  prototype,  out-fl:rip  them,  by 
eftablifliing,  what  they  have  not,  a  judici-oligarchy ; 
for  there  their  judges  are  removeable  by  a  joint  vote 
of  Lords  and  Commons.  Here  ours  are  not  remov- 
able, except  for  mal-feafance,  in  office  ;  which  mal- 
feafance  could  not  be  committed,  as  they  would 
have  no  office. 


16 

Upon  the  whole,  fir,  as  all  courts  under  any 
free  government  muil  be  created  with  an  eye  to  the 
adminiftration  of  juftice  only ;  and  not  with  any 
regard  to  the  advancement  or  emolument  of  indivi- 
dual men  ;  as  we  have  undeniable  evidence  before 
us,  that  the  creation  of  the  courts  now  under  con- 
lideration  was  totally  unneceflary  j  and  as  no  go- 
vernment can,  I  apprehend,  ferioufly  deny,  that  this 
legiflature  has  a  right  to  repeal  a  law  enabled  by  a 
preceding  one  ;  we  will,  in  any  event,  difcharge  our 
duty  by  repealing  this  law ;  and  thereby  doing  all 
in  our  power  to  correft  the  evil.  If  the  judges  are 
entitled  to  their  falaries,  under  the  conftitution,  our 
repeal  will  not  afteft  them  ;  and  they  will,  no  doubt, 
refort  to  their  proper  remedy  :  For  where  there  is 
a  conflitutional  right,  there  mud  be  a  remedy. 

After  Mr.  Brec  ken  ridge  fat  down,  there  was 
a  confiderable  paufe,  and  as  no  perfon  feemed  in- 
clined to  fpeak,  the  prefident  pro  tempore,  Mr.  y 
Baldwin,  of  Georgia,  afked,  if  the  houfe  was 
ready  for  the  queflion :  Mr.  Olcott  of  New- 
Hampfliire,  thereupon  rofc  and  obferved,  that  the 
fubjeft  was  of  fo  much  importance  as  to  merit  fur- 
ther confideration.  The  arguments  of  the  gentle- 
man from  Kentucky,  however  ingenious,  had  not 
convinced  him  that  the  law  ought  to  be  repealed. 
It  had  not  rifen  like  a  mufliroom  in  the  night,  but 
the  principles  on  which  it  refted  had  been  fettled 
after  mature  refie<flion.  He  thought  it  would  be 
extraordinary,  before  any  inconvenience  had  been 
difcovercd,  to  fct  fuch  a  law  afide.    For  thcfe  rea- 


17 

fons'Mr.  Olcott  moved  the  poftponcment  of  the 
confideration  of  the  queftion. 

Mr,  Cocke,  of  Tenneflee.  This  aft  is  faid  to 
be  entirely  experimental,  and  it  is  further  faid,  that 
no  inconveniencies  had  arifen  under  it.  He  thought 
ferious  inconveniencies  had  arifen.  The  inconveni- 
ence of  paying  137,000  dollars  a  year  was  truly 
ferious  ;  and  it  was  an  inconvenience  which  ought 
to  be  got  rid  of  as  foon  as  poffible.  It  was  ex- 
pelled that  gentlemen  oppofed  to  the  refolution 
would  come  forward  with  their  arguments  againft 
it.  If,  however,  they  had  no  arguments  to  ufe,  he 
thought  his  friend  from  Kentucky  had  brought  for- 
ward reafons  fo  cogent  and  experimental,  that  the 
houfe  mufl:  be  convinced  of  the  propriety  of  the 
repeal. 

Mr.  Dayton,  of  New-Jerfey,  trufted  it  was 
not  the  difpofition  of  the  mover  to  prefs  a  decifion 
to  day.  He  thought  it  would  be  improper  to  poft- 
pone  the  difcuffion,  as  gentlemen  would  thereby  be 
precluded  from  offering  their  opinions  on  the  fub- 
jeft.  He  hoped  the  motion  for  poftponement  would 
be  withdrawn,  that  other  gentlemen  might  have  an 
opportunity  to  fpeak. 

wj  tf  Motion  withdrawn.  5 

Mr.  JoNA.  Mason,  of  MafTachufetts,  faid,  it 
would  be  agreed  on  all  hands  that  this  was  one  of 
the  mod  important  qucftions  that  ever  came  before 
a  legiflature.  Were  he  not  of  this  opinion  he  would 
not  have  rifen  to  offer  his  fentiments.     But  he  felt 


18 

fo  deep  an  intcrcft  in  the  qucftion,  and  from  the 
rcfpe^t  which  he  entertained  for  the  difl:ri(ft  of  coun- 
try he  reprefented,  he  deemed  it  his  duty  to  meet 
the  fubjed,  and  not  be  fatisfied  with  giving  to  it,  his 
filent  negative. 

It  was  well  known,  and  he  prefumcd  it  would 
be  readily  agreed  to,  that  no  people  on  earth,  for 
the  laft  twenty-four  years,  had  been  fo  much  in  the 
habit  of  forming  fyflems  of  government,  as  the  peo- 
ple of  the  United  States.     Nor  had  any  people 
been  fo  fortunately  fituated  for  cool  and  correft 
deliberation.    In  the  conftitutions  they  had  formed, 
it  would  appear  that  there  had  been  an  uniform  con- 
currence in  the  eflablifhment  of  one  great  promi- 
nent feature,  and  alfo  in  the  application  of  one  uni- 
form principle  to  that  feature.   That  the  legiflative, 
the  executive,  and  the  judicial,  fliould  form  the  three 
great  departments  of  government,  and  that  they 
fhould  be  diflinft  from,  and  independent  of  each 
other.     And  the  more  the  proceedings  and  fenti- 
mcnts  of  the  people  were  examined,  the  more  clear- 
ly would  it  appear  that  all  the  new  and  additional 
checks  created,  had  been  applied  to  adjufl  the  rela- 
tive weakncfs  or  (Irength  of  the  feveral  departments 
of  government.     The  fame  principle  had  been  ob- 
fcrvcd  in  the  old  world,  whenever  an  opportunity 
prefeiUed  for  forming  a  conflitution,  having  for  its 
objeft,  the  protection  of  individual  rights.     It  ac- 
corded too,  with  the  uniform  opinions  of  the  mofl 
-celebrated  hiftorians  and  politicians  both  of  Europe 


19 

and  America ;  with  the  opinions  and  prances  o£ 
all  our  legiflatures.  Nor  had  Mr.  Mason  ever 
heard  any  one  hardy  enough  to  deny  the  propriety 
of  its  obfervance. 

He  well  recolleifled,  that  among  the  great  grie- 
vances, which  had  roufed  us  into  an  affertion  of  our 
independence  of  England,  it  was  declared  in  the  in- 
flruraent  afferting  that  independence,  "  that  the 
crown  had  the  appointment  of  judges  dependent  on 
its  will  and  favor." 

,    From  all  thefe  circumftances  he  concluded,  that 
the  people  of  America,  when  they  formed  a  fyflem 
for  their  federal  government,  intended  to  eftablifh 
this  great  principle  ;  and  the  conclufion  would  be 
confirmed  by  an  examination  of  the  conftitutlon, 
which,  In  every  fe<5lion,  recognized  or  referred  to  it. 
The  conftitutlon,  in  the  conftruftion  of  theexe* 
cutive,  legiflative,  and  judiciary  departments,  had 
afligned  to  each  a  different  tenure.     The  Prelident 
was  chofen  for  four  years ;  the  Senate  for  fix  years, 
fubjeft  to  a  prefcribed   rotation,    biennially;    the 
Houfe  of  Reprefentatives  for  two  years  ;  and  the 
Judiciary  during  good  behaviour.  It  fays  to  the  Pre- 
fident,    at    the   expiration    of  every  four  years, 
you   fhall   revert   to  the   charafter   of  a   private 
citizen,  however  fplendid  your  talents,  orconfplcuous 
your  virtue.     Why  ?  Becaufe,  you  have  afilgned 
to  you,  powers  which  it  is  dangerous  to  exercife. 
You  have  the  power  of  creating  offices  and  officers. 
You  have  prerogatives.  The  temptation  to  an  abufe 

D 


20 

of  your  power  is  great.  Such  has  been  the  unifornsi 
experience  of  ages.  The  conftitution  holds  the  fame 
language  to  the  Senate  and  Houfe  of  Reprefenta- 
tives  : — It  fays,  it  is  neceffary  for  the  good  of  focicty 
that  you  alfo,  (hould  revert,  at  fhort  periods,  to  the 
mafs  of  the  people,  becaufe,  to  you  are  configned 
the  mofl;  important  duties  of  government,  and  be- 
caufe you  hold  the  purfe-flrings  of  the  nation. 

To  the  Judiciary  :  What  is  the  language  applied 
to  them  ?  The  judges  are  not  appointed  for  two, 
four,  or  any  given  number  of  years ;  but  they  hold 
their  appointments  for  life,  unlefs  they  mifliehave 
therafclvcs.  Why  ?  For  this  reafon.  They  are 
not  the  depofitaries  of  the  high  prerogatives  of  go- 
vernment. They  neither  appoint  to  office,  or  hold 
the  purfe-ftrings  of  the  country,  or  legiflate  for  it. 
They  depend  entirely  upon  their  talents,  which  is 
all  they  have  to  recommend  them.  They  cannot, 
therefore,  be  difpofed  to  pervert  their  power  to  im- 
proper purpofes.  What  are  their  duties  ?  To  ex- 
pound and  apply  the  laws.  To  do  this,  with  fidelity 
and  /kill,  requires  a  length  of  time.  The  requifitc 
knowledge  is  not  to  be  procured  in  a  day.  Thefc 
are  the  plain  and  ftrong  reafons  which  mufl  flrikc 
every  mind,  for  the  different  tenure,  by  which  the 
judges  hold  their  offices,  and  tliey  are  fuch  as  will 
eternally  endure  wherever  liberty  exifts. 

On  examination,  it  will  be  found  that  the  peo- 
ple, in  forming  their  conflitution,  meant  to  make 
the  judges  as  independent  of  the  legiflature  as  of  the 


21 

executive.  Becaufe  the  duties  which  they  have  to 
perform,  call  upon  them  to  expound,  not  only  the 
laws,  but  the  conftitution  alfo  ;  in  which  is  involved 
the  power  of  checking  the  legiflature  in  cafe  it  fliould 
pafs  any  laws,  in  violation  of  the  conflitution. 
For  this  reafon,  it  was  more  important,  that  the 
judges,  in  this  country,  ihould  be  placed  beyond  the 
control  of  the  legiflature,  than  in  other  countries, 
where  no  fuch  power  attaches  to  them. 

Mr.  Mason  challenged  gentlemen  to  exhibit  a 
fingle  inftance,  befide  that  lately  furniflied  by  Mary^ 
land,  of  a  legiflative  aft,  repealing  a  law  paffed  in 
execution  of  a  conflitution,  under  which  the  judges 
held  their  offices  during  good  behaviour.  Ip  truth, 
no  fuch  power  exifled,  nor  was  it  in  the  power  of 
any  legiflature,  fo  circumflanced,  by  a  f0gle  law,  to 
dafli  them  out  of  exiflence.  / 

The  opinion  of  Mr.  Mason,  therefore,  was,  that 
this  legiflature -have  no  right  to  r<:peal  the  judiciary 
law.  For  fuch  an  aft  would  pc  in  direft  violation 
of  the  conflitution.  / 

The  conflitution  fays  :^-"  The  judicial  power 
of  the  United  States  fli?fl  be  vefled  in  one  Supreme 
Court,  and  in  fuch  inferior  courts  as  the  Congrefs 
may,  from  time  to^'n^e  ordain  and  eflabhfli.  The 
judges,  both  of  tie  fupreme  and  inferior  courts,  fhall 
hold  their  offi<^s  during  good  behariour,  and  fnail,  at 
ftated  time<i,  receive  for  their  fervices,  a  compenfa- 
lion,  wftich  fhall  not  be  diminilhcd  during  their 
continuance  in  office." 


Thus,  it  fays,  "  the  judges  Jha/I  hold  their  offi- 
ces during  good  behaviour.'*  How  can  this  direc- 
tion of  the  conflitution  be  complied  with,  if  thelc- 
gillaturc  fhall,  from  fcfTion  to  feflion,  repeal  the  law 
under  which  the  office  is  held,  and  remote  the  office  ? 
He  did  not  conceive  that  any  w^ords,  which  human 
ingenuity  could  devife,  could  more  completely 
get  over  the  remarks  that  had  been  made  by  the 
gentleman  from  Kentucky.  But  that  gentleman  fays, 
that  this  provifion  of  the  conflitution  applies  exclu- 
fively  to  the  Prefident.  He  confiders  it  as  made  to 
fuperfede  the  powers  of  the  Prefident  to  remove  the 
judgfis.  But  could  this  have  been  the  contempla- 
tion of  the  framers  of  the  conflitution,  when  even 
the  right  of  the  Prefident  to  remove  officers  at  plea- 
fure,  was  a  matter  of  great  doubt,  and  had  divided 
in  opinion  our  mofl  enlightened  citizens.  Not  that 
he  flated  this  circumflance,  becaufe  he  had  doubts  ? 
He  thought  the  Prefident  ought  to  have  the  right ; 
but  it  did  not  cma:iate  from  the  conflitution  ;  was 
not  exprefsly  found  it.  the  conflitution  j  but  fprang 
from  legiflative  conflrudyon. 

Befidcs,  if  Congrefs  h^ve  the  right  to  repeal  the 
whole  of  the  law,  they  muf  I  pofTes,  the  right  to  re- 
peal a  fe<ftion  of  it.  If  fo,  they  may  repeal  the  law, 
fo  far  as  it  applies  to  a  particular  diflrift,  and  thus 
get  rid  of  an  obnoxious  judge,  llity  may  remove 
his  office  from  him.  Would  it  not  be  uhfurd  flill  to 
fay,  that  the  removed  judge  held  his  offic/^  during 
good  behaviour  ? 


S3 

The  conftitution  fays,  *'  The  judges,  fliall,  at 
ftated  times,  receive  for  their  fervices,  a  compenfa- 
tion,  which  fhall  not  be  diminifhed  during  their  con- 
tinuance in  office."  Why  this  provifion  ?  Why 
guard  againfl  the  power  to  deprive  the  judges  of  their 
pay  in  a  diminution  of  it,  and  not  provide  againft 
what  was  more  important,  their  exiflence  ? 

Mr.  Mason  knew  that  a  legiflative  body  was  oc.- 
cafionally  fubjeft  to  the  dominance  of  violent  paf- 
fions  ;  he  knew,  that  they  might  pafs  unconftitution^  1 
al  laws  }  and  that  the  judges,  fworn  to  fupport  the  | 
conftitution,  would  refufe  to  carry  them  into  effect  j  ! 
and  he  knew  that  the  legiflature  might  contend  for 
the  execution  of  their  ftatutes.  Hence,  the  neceffity 
of  placing  the  judges  above  the  influence  of  thefc 
paffions  ;    and  for  thefc  reafons   the  conftitution 
had  put  them  out  of  the  power  of  the  legiflature. 

Still,  if  gentlemen  would  not  agree  with  him  as 
to  the  unconftitutionaUty  of  the  meafure  propofed,  he 
would  aflc,  was  it  expedient?  Were  there  not 
great  doubts  exifting  throughout  the  United  States? 
Ought  not  each  gentleman  to  fay,  though  I  may- 
have  no  doubts  nor  hefitancy,  are  not  a  large  por- 
tion of  our  citizens  of  opinion,  that  it  would  violate 
the  conftitution?  If  this  diverfity  of  fentiment 
cxifts,  ought  not  the  evils  under  the  judiciary  law 
to  be  very  great  before  we  touch  it  ?  Ought  we 
not  to  aim  at  harmonifmg,  inftead  of  dividing  our 
citizens  ?  Was  not  the  conftitution  a  facred  inftru- 
ment  j  an  inftrument  ever  to  be  approached  with 


24 

reverence ;  an  inftrument  which  ought  not  lightly 
to  be  drawn  from  its  hallowed  retreat,  and  fubjefted 
to  the  flux  and  reflux  of  paflion.  But  where  is  the 
evil  complained  of  ?  This  fyftem  was  eftabliflicd 
only  lafl  feflion  :  fcarcely  had  it  been  yet  organifed; 
fcarcely  had  we  tried  it  on  its  very  threfliold ; 
where  then  the  neceflity  of  being  fo  pointed,  as  to 
defl:roy  a  fyftem,  fcarcely  formed  three  days  ago  ? 
Does  not  this  manifeft  precipitation  ?  Will  it  not 
manifeft  more  magnanimity,  more  rationality,  to 
abide  by  it  until  we  try  it ;  inftead  of  taking  up  a 
pen,  and  dafhing  it  out  of  exiftence  ? 

The  reafon  that  the  fuits  depending  were  not 
fo  numerous,  arofe  from  the  nature  of  the  old  cftab- 
lifliment.  That  eftablifliment  had  no  parallel.  It 
carried  with  it  the  feeds  of  its  own  diflblution. 
No  fet  of  judges  could  be  found  phyfically  hardy 
enough  to  execute  it.  Such  was  the  labour  of 
their  duties,  that  they  were  denied  time  for  ftudy  or 
improvement.  Befides,  a  cafe  was  heard  at  one 
term  by  one  judge,  and  poftponed  for  confideration 
to  the  next  term.  At  that  term,  another  judge  ap- 
peared, and  all  the  arguments  were  to  be  gone  over 
a-new ;  and  the  fame  thing  might  happen  again  and 
again.  Was  this  the  way  to  extend  juftice  to  our 
citizens  ?  Was  not  the  delay  equivalent  to  a  de- 
nial of  juftice  ?  It  was  a  faft,  that  three-fourths 
of  the  lime  ot  the  judges  had  been  taken  up  in  tra- 
velling. 


25 

It  may  be  true,  that  the  number  of  fuits  in  the 
federal  courts  is  leflened  ;  and  if  the  internal  taxes 
are  to  be  fwept  away,  it  may  be  ftill  more  leflened, 
as  far  as  depends  upon  that  fource.  But  is  it  pof- 
fible,  that  fuits  will  go  on  diminifliing  as  the  gen- 
tleman feems  to  think  ?  Is  reafon  fo  predominant  ? 
Is  the  millenium  fo  near  at  hand  ?  On  the  contrary, 
is  not  our  commerce  increafing  with  great  rapidi- 
ty ?  Is  not  our  wealth  increafmg  ?  And  will  not 
controverfles  arife,  in  proportion  to  the  growth  of 
our  numbers  and  property  ?  Controverfies,  which 
■will  go  to  federal  tribunals,  as  foon  as  thejudiciary 
fyftem  is  fully  eflablilhed.  By  the  documents,  quot- 
ed by  the  gentleman  from  Kentucky,  it  appears, 
that  more  bufmefs  has  been  lately  done  in  the  fe- 
deral courts,  than  in  any  other  antecedent  time,  ex- 
cept in  one  or  two  counties  in  Pennfylvania. 

Befides,  (faid  Mr.  Mason,)  even  if  there  be 
not  a  great  preflure  of  bufmefs,  had  we  not  better 
pay  the  paltry  fum  of  30  or  40,000  dollars  for  a 
fyftem  too  broad,  than  have  one  that  is  too  narrow  ? 
Is  it  not  a  melancholy  confideration,  that  in  many 
of  the  European  States,  the  cofts  are  equal  to  the 
principal  contended  for  ?  It  would  be  honourable 
to  the  United  States  to  exhibit  a  different  example. 
It  would  be  honourable  to  them  to  hold  out  an  ex- 
ample, even  if  confined  to  foreigners,  of  prompt  and 
efficacious  juftice,  though  at  the  expence  of  100,000 
dollars.  Such  an  example  would  be  a  caufe  for 
national  triumph,  and  our  people  would  exult  in  it. 


26 

Inafmuch,  therefore,  as  to  render  the  judges 
refpeftable,  it  was  neccflary  to  make  their  appoint- 
ments permanent,  as  time,  labour,  experience,  and 
long  ftudy,  were  required  to  perfeft  any  man  in  a 
knowledge  of  the  laws  of  his  country  :  inafmuch  as 
it  has  been  thought  good  policy,  that  the  judges 
Ihould  be  well  paid  ;  and  that  they  fhould  be  fo 
placed  as  to  be  diverted  of  all  fear,  and  neither  to 
look  to  the  right  nor  to  the  left :  inafmuch  as  they 
(hould  be  (o  placed  as  to  render  them  independent 
of  legiflative  as  well  as  of  executive  power ;  he 
hoped  this  law  would  not  be  repealed. 

Thefe  were  the  reafons,  which  Mr.  Mason  af- 
figned  as  thofe  which  would  influence  his  decifion. 
He  acknowledged,  that  he  had  not  entered  the 
Houfe  prepared  to  offer  his  fentiments ;  but  as  the 
quertion  was  about  to  be  put,  he  had  thought  it 
bcft  to  offer  them,  fuch  as  they  were,  rather  than 
to  give  a  filent  vote  on  a  fubjedl  of  fuch  great  im- 
portance. 

Mr.  Wright,  of  Maryland,  faid,  it  muft  be 
agreed,  that  this  fubjeft  was  one  of  great  importance 
from  its  effeft  upon  our  revenues.  If  the  repeal  of 
the  aft  of  laft  feffion  was  conftitutional,  he  prefum- 
td  there  could  be  little  doubt  of  its  expediency  from 
the  documents  on  our  table.  Has  the  conftitution 
verted  the  legiflature  with  a  power  over  the  fubjeft 
of  the  refolution  ?  If  fo,  then  fliould  a  law,  which 
had  been  the  effeft  of  a  flux  of  pafllon,  be  repealed 
by  a  reflux  of  reafon.    He  believed  that  it  had  been 


27 

Introduced  at  the  period  of  an  expiring  adminfftra- 
tion.  It  had  been  refifted  by  the  republican  fide 
of  the  Senate ;  and  he  trufted  that  now,  on  the  re- 
turn of  reafon,  it  would  be  repealed. 

An  allufion  had  been  made  to  the  ftate  of  Ma- 
ryland,  which  had  repealed  a  law  refpefting  the  ju- 
diciary. Mr.  Wright  here  quoted  the  conftitution 
of  that  ftate,  whofe  provifions,  he  obferved,  fo  fa» 
as  refpe<0:ed  the  tenure  of  tlie  ofEce  of  a  judge,  cor- 
refpondcd  with  thofeof  the  conftitution  of  the  Uni- 
ted States.  The  Legiflature  of  that  ftate  had  been 
of  opinion,  and  corre(5lIy  too,  that  they  did  poflefs 
the  power  of  repealing  a  law  formed  by  their  pre- 
deceflbrs.  And  the  legiflature  of  the  United  States 
pofTefled  the  fame  power.  This  they  had  already 
determined  by  the  very  aft  of  the  laft  feflion,  which, ' 
while  it  created  a  number  of  new  judges,  aboliihed 
the  offices  of  feveral  diftricl  judges. 

It  was  clear  that  the  conftitution  meant  fo  guard 
the  officer,  and  not  the  office.  Will  it  be  faid  that 
what  the  legiflature  makes  to-day,  they  cannot  an- 
nihilate to-morrow.  Even  as  to  the  judges  of  the 
Supreme  Court,  had  not  the  law  firft  conftituted 
fix,  and  was  it  not  now  reduced  by  Jaw  to  five  ? 
And  if  Congrefs  has  power  to  reduce  the  number 
of  the  fuperior,  have  they  not  the  fame  power  to 
reduce  the  number  of  the  inferior  judges  ?  Are 
we  to  be  eternally  bound  by  the  follies  of  a  law, 
which  ought  never  to  have  been  pafled  ? 


28 

Why  the  expreffion  in  the  conftitution,  "  The 
judicial  power  (hall  be  vefted  in  Inch  inferior  courts 
as  Congrcfs  may,  from  time  to  time^  ordain  and 
eftablifli,'*  if  it  had  been  intended,  as  is  now  con- 
tended, that  the  office  being  once  bellowed,  no 
change  can  be  made. 

If  the  cafe  of  thofe,  who  have  accepted  thofc 
offices,  be  confidered  as  a  hard  one,  may  it  not  be 
faid  that  they  knew  die  conftitution,  and  the  tenure 
by  which  their  offices  were  to  be  held.  In  our 
regard  for  indiridual  intereft,  we  ought  not  to  fa- 
crifice  the  great  interefts  of  our  country.;  and  was 
it  not  demonftrable  that,  if  21  judges  were  fufficient 
when  1200  fuits  exifted,  they  were  equally  fo,  when 
there  were  no  more  than  700. 

The  gentleman  from  MalTachufetts  was  wrong 
in  flating  that  Maryland  was  the  only  Itate  that  had 
repealed  a  law  creating  judiciary  offices.  Virginia, 
if  he  was  not  miliuformed,  had  done  the  fame  thing. 
But  we  wanted  not  thefe  precedents.  Our  own 
archives  furniflied  us  with  abundant  precedents. 
"We  had  reduced  the  judges  of  the  Supreme  Court 
from  fix  to  five,  we  had  annihilated  two  diftri^ls. 
The  very  gentlemen  oppofed  now  to  the  repeal  of 
this  law  had  voted  for  thefe  meafures.  Thus  it  ap- 
peared, that  thougli  the  Conftitutioii  juftified  the 
meafure  then^  it  prohibited  it  now  I 

Believing  the  judiciary  law  of  the  laft  feffion 
had  arifen  from  a  difpofition  to  provide  for  the  warm 
friend*  of  the   exifting   adminillration ;   believing 


29 

ttat  great  inconveniencies  had  arifen  under  it  ; 
i  believing  its  expense  to  be  oppreiUve  j  and  believ- 
ing, that  if  one  legiflature  had  a  right  to  pafs  it, 
another  legiflature  had  the  fame  right  to  repeal  it ; 
he  trufted,  that  however  a  preceding  legiflature 
might  have  been  governed  by  paffion,  the  prefent 
legiflature  would,  by  repealing  it,  fliew  that  they 
were  governed  by  reafon. 

■-'  After  Mr.  Wright  concluded,  there  was 
again  a  paufe,  and  the  queftion  was  called  for  ; 
Mr.  Morris,  of  New- York,  then  fpoke,  as  fol- 
lows : 

Mr.  Prefident,  I  am  fo  very  unfortunate,  that 
the  arguments  for  repealing  the  law,  to  which  this 
motion  refers,  have  confirmed  my  opinion  that  it 
ought  not  to  be  repealed.  The  honourable  mover 
has  thought  fit  to  reft  his  propofition  upon  two 
^rounds : 

o 

Firfl:. — That  the  judiciary  law,  paflfed  laft 
feflSon,  is  unnecefliary  and  improper. 

Secondly. — That  we  have,  by  the  conftitution, 
a  right  to  repeal  it ;  and,  therefore,  ought  to  exer- 
cife  that  right. 

The  numerical  mode  of  argument  he  has  made 
ufeof,  to  eftablifli  hisfirft  point,  is  perfeftly  novel, 
and,  as  fuch,  it  commands  my  tribute  of  admira- 
tion. This,  indeed,  is  the  firft  time  I  ever  heard 
that  the  utility  of  courts  fhould  be  efl:imated  by  the 
number  of  fuits  which  they  are  called  on  to  de- 
cide.    I  remember  once  to  have  read,  that  a  juftly 


30 

celebrated  monarch  of  England,  the  great  Alfred, 
had  enabled  fuch  laws,  eftabliflied  fuch  tribunals, 
and  organized  fuch  a  fyftem  of  police,  that  a  purfe 
of  gold  might  be  hung  upon  the  fide  of  the  high- 
way, without  any  danger  that   it   would  be  flolen. 
But,  fir,  had  the  honourable  gentleman  from  Ken- 
tucky cxifted  in  thofe  days,  he   would,  perhaps, 
have  attempted  to  convince  old  Alfred,  that  he  had 
been   egregionfly  miftaken  ;  and,    that   a  circum- 
ftance,  which  he  confidered  as  the  pride  and  glory  of 
his  reign,  had  arifea   from  its   greateft  defeft,  and 
forefl  evil.     For,  by  afluming  the  unfrequency  of 
crimes  as  the  proof  that  tribunals  were  unnecefTary, 
and  thus   boldly  fubftiiuting  effect  for   caufe,  the 
gentleman  might  have  demonftrated  the  inutility  of 
the  inftitution,  by  the  good  which  it  had  produced- 
Surely,  this  kind  of  reafoning,  is,  of  all  others,  the 
mofl:  falfc  and  the  moft  fallacious. 

But,  fir,  if,  with  that  poor  meafure  of  ability, 
which  it  hath  pleafed  God  to  give  me,  I  march  on  the 
ground  I  have  been  accuftomed  to  tread,  and  which 
experience  hath  taught   me  to  confidcr  as  folid,  I 
would  venture  the  alTertion,  that   in  fo  far  as  our 
judicial  inditutions  may  accelerate  the  performance 
of  duties,  promote  the  caufe  of  virtue,  and  prevent 
the  perpetration  of  crimes,  in  that  fame  degree 
ought  they  to  be  eftimated  and  cherifhed.     This, 
fir,  would  be  my  humble  mode  of  reafoning,  but  for 
the  wonderful  difcovery,  made  by  the  honourable 
mover  of  the  refolution  on  your  table. 


31 

To  prove,  that  the  law  of  laft  fcffion  was  impro- 
per,  as  well  as  unneccjfary,  we  have  been  told  of  the 
vafl:  expense  of  our  judiciary.  We  are  referred  to 
the  estimates,  which  lie  before  us,  for  proof,  that  it 
amounts  to  no  lefs  than  the  yearly  fum  of  137,000 
dollars.  And  then,  attributing  the  whole  expense 
to  this  particular  law,  it  has  been  alTumed,  in  argu- 
ment, that  to  repeal  the  law,  would  operate  a 
faving  of  137,000  dollars. 

If,  fir,  the  data  upon  which  the  honourable 
member  has  founded  his  other  arithmetical  argu- 
ments, are  equally  incorre£l,  the  inferences  drawn 
from  them  will  merit  but  little  attention.  Cf  this 
whole  fum,  of  137,000  dollars,  (mentioned  in  the 
eftimates  of  your  Secretary  of  the  Treafury)  no  lefs 
than  45,000  dollars  are  flated  as  the  fuppofed  con- 
cingent  expense,  to  accrue  for  the  attendance  of 
jurors,  witneffes,  &c.  From  hence  is  fairly  to  be 
inferred  the  expeftation,  that  much  bufinefs  will  be 
aftually  done. 

The  expense,  fuppofed  to  accrue  from  the  law 

we  are  called  on  to  repeal,  is  but  thirty-two  thou- 

fand  dollars,  for  falaries,  and  fifteen  thoufand  for 

contingencies ;  making,  together,  47,000  dollars. 

But  let  us  not  ftint  the  argument.     Let  us  make  a 

"generous  allowance.     Let  us  throw  in  a  few  thou- 

fandsmore,  and  take  the  amount  at  51,000  dollars. 

Let  that  fum  be  apportioned  among  the  people  of 

the  United  States,  (according  to  the  cenfus  lately 

taken)  and  you  will  find,  that  the  fliare  of  each  io' 


32 

dividual,  is  jiifl  one  cent.  Yet,  for  this  paltry  fav- 
ing  of  a  cent  a  man,  we  are  called  on  to  give  up 
what  is  moft  valuable  to  a  nation. 

Undoubtedly,  it  is  one  great  purpofe  of  go- 
vernment, to  proteft  the  people  from  foreign  inva- 
fion,  and,  to  be  in  readinefs  for  it,  a  confiderable 
armament  may  be  necefTary.     The  maintenance  of 
of  naval  and  military  force,  to  proteft  our  trade, 
and  to  guard  our  arfenals  and  magazines,  will  alone 
require  much  money  ;  to  provide  which,  you  mufl 
raife   a  confiderable   revenue.     That   again  will, 
(for  the  collection  of  it)  demand  many  officers,  in- 
volving a  flill  greater  expense.  All  this  musi  bepaid^ 
and  yet,  all  thefe  provifions  are  for  events  uncer- 
tain.    An  invafion  may^  or  may  not^  take  place. 
Nay,  if  I  may  judge  from  certain  documents,  thofe 
who  adrainifler  our  affairs,  have  little  apprehenfion 
of  fuch  an  event.     /  hope  they  may  not  he  deceived. 
But,  admitting  that  we  have  no  danger  to  fear,  or, 
which  comes  to  the  fame  thing,  that  we  are  pro- 
perly fecured  againft  it ;  what  elfe  have  the  people 
a  right  to  demand,  in  return  for  the  whole  sum  ex- 
pended in  the  fupport  of  government  ?     They  have 
a  right  to  a/k  thaty  without  which,  proteQion  from 
invafion,  nay  government  itfelf,  is  worfe  than  ufe- 
Icfs.     They  have  a  right  to  q^  for  the  protection  of 
lavjy  well  administered  by  proper  tribunals,  to  secure 
the  weak  against  the  strong,  the  poor  against  the  rich, 
the  oppressed  against  the  oppressor.     This,  which  in- 
volves but  little  expence,  is  all  they  afk  for  all  their 


33 

money.  And  is  this  little  to  be  denied  ?  Mufl  tli6 
means  by  which  the  injured  can  obtain  redrefs,  be 
curtailed  and  diminiflied,  to  fave  a  poor  and  pitiful 
expense  ?  You  mufl  pay  largely  to  fupport  but  a 
fmall  force,  and  much  is  to  be  feared  from  armies. 
They,  indeed^  may  turn  their  fwords  againfl  our 
bofoms.  They  may  raife  to  empire  fome  daring 
chief,  and  clothe  him  with  d^fpotic  power.  But 
what  danger  is  to  be  apprehended  from  that  army 
of  judges  which  the  gentlemen  have  talked  of  ?  Is 
it  fo  great,  fo  imminent,  that  we  mufl  immediately 
turn  to  the  right  about,  the  new  corps,  lately  raifed, 
of  lixteen  rank  and  file  ?  "  ■  ■   ':  ^"".v  ' 

Gentlemen  fay,  that  we  mufl,  and  bid  us  recur 
to  the  ancient  fyflera.  What  is  that  fyflem  ?  Six 
judges  of  the  Supreme  Court,  to  ride  the  circuit  of 
all  America,  twice  a  year,  and  affemble  twice  a  year, 
at  the  feat  of  government.  Without  inquiring  in- 
to the  accuracy  of  a  flatement  which  the  gentleman" 
has  made,  refpefting  the  courts  of  England,  (in 
which,  however,  he  will  find  himfelf  much  mif- 
taken)  let  me  afk,  what  will  be  the  eSeS:  here  of  re- 
floring  that  old  fyflem  ?  Cafl  an  eye  over  the  extent 
of  our  country,  fee  the  diftance  to  be  travelled  in 
making  the  circuits,  and  a  moment's  confideration 
will  fliew,  that  if  we  refort  to  the  old  fyflem,  the 
firfl  magiflrate,  in  felefiling  a  charafter  for  the 
bench,  mufl  feek  lefs  the  learning  of  a  judge,  than 
the  agility  of  a  pofl-boy.  Can  it  be  expefted,  is  it 
polTible,  that  men,  advanced  in  years,  (for  fuch  alone 


34 

have  the  maturity  of  judgment  which  befits  that  of- 
fice) men  educated  in  the  clofet,  men,  who,  from 
their  habits  of  life,  mufl  have  more  ftrength  of 
mind  than  of  body  ;  is  it,  I  fay,  poflible,  that  fuch 
men  can  be  continually  running  from  one  end  of  the 
continent  to  the  other  ?  Or  if  they  could,  can  they 
find  time  alfo,  to  hear,  confider,  and  decide,  on  nu- 
merous and  intricate  caufcs  ?  No,  fir,  they  can  not. 
I  have  been  well  aflfurcd,  by  men  of  eminence,  on 
your  bench,  that  they  would  not  hold  their  offices 
under  the  old  arrangement. 

What  is  the  prefent  fyflem  ?  You  have  added 
feven  diilri^l  and  fixtccn  circuit  judges.  Thefe  arc 
fully  competent  to  perform  the  bufincfs  required, 
and  the  complaint  is  merely  on,  the  fcore  of  expense  : 
Ho  one  has  pretended  that  the  business  will  not  be 
done  as  speedilf,  and  as  zucll.  It  is  merely  to  fave 
cxp)cnse,  therefore,  that  we  are  called  on  to  repeal 
the  law.  But  what  will  be  the  efFcft  of  this  defired 
repeal  ?  Will  it  not  be  a  declaration  to  the  remain- 
ing judges,  that  they  hald  their  offices  subject  to  your 
vtAll^  and  during  your  pleasured  And  what  is  the 
natural  efFc6t  of  that  declaration  ?  Is  it  not,  that, 
dependent  in  this  situation^  they  will  lose  the  indepen- 
dent spirit  essential  to  a  due  exercise  of  their  authori- 
ty ?  Thus,  then,  the  check  eftablifhed  by  the  con- 
flitution,  defired  by  the  people,  and  neceffary  in 
every  contemplation  of  common  fenfc,  will  be  de- 
ftroyed.  It  has  been  faid,  and  truly  faid,  that  go- 
Tcrnracnts  are  made  to  provide  agaiofl  the  follies 


I 


35 

and  vices  of  men.  To  fuppofe  that  governments 
reft:  upon  reafon,  is  a  pitiful  folecifm  :  for,  if  man- 
kind were  reasonable^  they  would  want  no  goiiern- 
ment.  From  the  fame  caufe  it  arifes,  that  checks 
are  required  in  the  diftribution  of  power,  among 
thofe  to  whom  it  is  confided,  and  who  are  to  ufe  it 
for  the  benefit  of  the  people.  Here,  then,  let  me 
alk,  whether  the  peqple  of  America  have  veiled  all 
■power ^  uncontroledi  in  the  National  Legislature  ? 
Surely  they  have  not.  They  have  prefcribed  to  it 
certain  bounds,  and,  in  the  natural  fuppofition, 
that  thefe  bounds  might  be  tranfgrefled,  they  have 
vefted,  in  the  judges,  a  check,  which  they  fuppofed 
to  be  falutary,  and  intended  to  be  efficient.  A 
check  of  the  firft  neceffiry,  becaufe  it  may  prevent 
an  invafion  of  the  conftitution,  by  unconflitutional 
laws.  And  to  fecure  the  exigence  and  the  opera- 
tion of  this  check,  there  is  a  provifion,  highly  im- 
portant, whofe  objeft  is,  to  prevenl;^  any  party,  or 
fa^bion,  from  intimidating  or  annihilating  the  tribu- 
nals themfelves. 

On  this  ground,  then,  I  ftand,  to  arreft  the  vic- 
tory meditated  over  the  conftitution  of  my  country. 
A  victory,  meditated  by  thofe  who  wifli  to  proftrate 
that  conftitution,  for  the  furtherance  of  their  ambi- 
tious views.  Not,  fir,  the  views  of  him  who  re- 
.  commended,  nor  of  thofe  who  now  urge  this  mea- 
fure  (for  on  his  uprightnefs,  and  on  their  uprightnefs, 
I  have  full  reliance,)  but  of  thofe  who  are  in  the 
back  ground,  and  who  have  further  and  higher  ob- 

F 


36 

je£ls.  To  ilicm,  our  national  compaft  forms  an 
infurmountable  barrier.  Thofc  troops,  therefore, 
which  prote6l  the  out-works  of  the  conftitution, 
arc  to  be  firft  difmiflcd  ;  thofe  poHis  which  prefent 
the  inoft  formidable  defence,  are  firft  to  be  carried  ; 
and  then  the  conftitution  becomes  an  eafy  prey. 

Let  us  confidcr,  therefore,    whether  we  have, 
conftitutionally,  the  power  to  repeal  this  law.    And 
to  this  effect,  let  us  hear  the  language  of  the  con- 
ftitution.    "  The   Judicial   power  of  the  United 
States  fliall  be  veftcd  in  one  supreme  court,  and  in 
fuch  inferior  courts,  as  the  Congrefs  may,  from 
time  to   time,  ordain  and  eftablifli.     The  judges, 
both  of  the  supreme  and  inferior  courts,  ftiall  hold 
their  offices   during  good  behaviour^  and  ill  all,   at 
ftated  times,  receive  for  their  fervices,  a  compenfa- 
tion,  which  Jh.ill  not  be  diminijhed  during  their  con- 
tinuance in  office.**     On  this,  fir,  I  have  heard  a 
verbal  criticifm,   about  the   words  Jhall  and  may, 
which  appears  to  me  wholly  irrelevant.     And  it  is 
the  more  unneceftary,   as  the  fame  word,  Jhall,  is 
applied  to  the  provifions  contained  in  both  members 
of  the  fcclion.  It  fays,  *'  The  judicial  power  J/jall  be 
vefted  in  one  fupreme  court,  and  in  such  inferior 
courts  as  the  Congrefs  may^  from  time  to  time,  or- 
dain and  eftablllh.'*  The  legiflature  have,  therefore, 
the  undoubted  right    to  determine,  what  inferior 
courts  they  will  eftablifli  ;   but,  when  once  establish- 
ed, a  part  of  the  judicial  power  Jhall  veft  in  them. 
The  words  are  imperative,  and  fo  they  are  as  to  the 


37 

tenure  of  the  office,  which  the  legiflature,  (in  the 
cxercife  of  this  difcretionary  power)  may  have 
created.  The  judges,  it  hys,  Jhall  hold  their  offices 
during  good  behaviour.  Thus,  upon  the  eftablifli- 
ment  of  the  tribunal,  the  conflitution  has  declared, 
that  the  judicial  power  fliall  veft,  and  the  office  be 
held  during  good  behaviour.  The  fecond  member 
of  the  feftion  is  equally  imperative.  It  declares, 
that  they  Jhall  receive  a  compenfation,  which  y/W/ 
not  be  diminijhed  during  their  continuance  in  office. 

Whether  we  confider,  therefore,  the  tenure  of 
office,  or  the  quantum  of  compenfation,  the  lan- 
guage is  equally  clear  and  conclulive.  After  this 
flmple  expolition,  gentlemen  are  welcome  to  every 
advantage  they  can  derive  from  a  criticifm  upon 
Jhall  and  may. 

Another  criticifm  has  been  made,  which,  but 
for  its  ferious  effefts,  I  would  call  plcafant.  The 
amount  of  it  is,  you  (hall  not  take  the  man  from 
the  office,  but  you  may  take  the  office  from  the 
man  \_  you  fliall  not  throw  him  overboard,  but  you 
may  fink  his  boat  under  him  ;  you  fliall  not  put 
him  to  death,  but  you  may  take  away  his  life.  The 
conflitution  fecures  to  a  judge  his  office  ;  fays  he 
fliall  hold  it,  (that  is,  it  fliall  not  be  taken  from  him) 
during  good  behaviour  ;  the  legiflature  fliall  not 
diminifli,  though  thtir  bounty  may  increafe  his 
falary  ;  thus,  the  conititution  has  made  ail  poffible 
provifion  for  the  inviolability  of  his  tenure,  as  far  as 
the  power  of  language  csin  extend  ;  and,  if  not,  I  call 


S8 

on  gentlemen  to  fliew  the  contrary,  by  giving  us 
words  more  clear,  more  precise,  more  definite.     If, 
after  the  flrong  pofitive  expreflions,  any  negative 
terms  had  been  added,  would  it  not  have  been  im- 
proper ?     If  the  framers  of  the  conflitution  had 
faid,  the  judges y)6^?///;o/^  their  offices,  which  yZ?^?// 
not  be  taken  away,  would  not  this  have  been  ridicu- 
lous ?     Would  it  not  have   almofl:   amounted  to 
what,  in  vulgar  language,  is  called  a  bull  ?    Would 
it  not  have  been  inconfiftent  with  the  gravity  of 
flyle  proper  for  fuch  an  important  and  ferious  fub- 
jcft  ?     Let  us,  I  repeat  it,  fir,  be  favoured  zuitb  the 
words,  if  any  words  can  be  ufed,  more  positive,  more 
inhibitory,  more  peremptory,  than  thofe  contained  in 
this  inftrument.     And  is  it  not  a  mere  contradiftion 
in  terms  to  fay,  we  may  destroy  an  office  which  we 
cannot  take  aiuay  ?     Will  not  the  destrudion  of  the 
office  as  effisftually  destroy  the  tenure,  as  the  grant 
to  another  person  ? 

But,  we  are  alked,  if  thefe  laws  are  immutable. 
Unqueftionably,  fir,  the  legiflature  have  a  right  to 
alter,  change,  modify,  and  amend,  the  laws  which 
relate  to  the  judiciary,  fo  as  may  beft  comport  with 
the  intereft,  peace,  and  happinefs,  of  the  people. 
This  right,  however,  is  confined  by  the  limitations 
which  the  conflitution  prefcribes.  Neither  the  le- 
giflative  nor  the  executive  powers,  nor  both,  can 
remove  a  judge  from  office  during  his  good  behavi- 
our. There  is  no  power,  any  where,  competent 
to  this  pu  pofe  ;  (Paving  always  the  right  of  a  con- 


39 

queror,  for  that  is  a  power  not  derived  irom,  but 
fubverfive  of  the  conftitution  ;)  and  yet,  it  is  ton- 
tended,  that  by  the  repeal  of  the  law,  that  office, 
from  which  he  cannot  be  removed,  may  be  dcflroy- 
ed.     Is  not  this  abfurd  ? 

But,  to  prove  it,  we  have  been  told,  that  what- 
ever one  legiflature  can  do,  another  can  undo. 
That  no  legiflature  can  bind  its  fucceffor,  and  that 
a  right  to  make,  involves  a  right  to  deftroy.  All  this 
I  deny,  on  the  ground  of  reafon,  and  on  the  ground 
of  the  conftitution.  What !  can  a  man  rightfully 
deftroy  his  own  children  ?  When  the  legiflature 
have  created,  by  law,  a  political  exiftence,  can  they, 
by  repealing  the  law,  diflblve  the  corporation  they 
had  made  ?  You  fay  you  can  undo  whatever  your 
predecelfors  have  done.  Your  predeceflfors  have 
borrowed  money  at  high  intereft  ;  can  you  now 
reduce  that  intereft  ?  They  have  funded  the  nation- 
al debt ;  have  you  now  a  right  to  abolifti  that  debt  ? 
Under  a  preflfiire  of  necefllty,  you  have  given  an 
ufurious  confideration  of  eight  per  cent,  to  obtain 
money  ;  can  you  now,  (becaufe  it  is  onerous)  anni- 
hilate that  contrad  ?  When,  by  your  laws,  you 
have  given  to  any  individual  the  right  to  make  a 
road  or  bridge,  and  to  take  a  toll  j  can  you,  by  a 
fubfequent  law,  take  it  away  ?  No ;  when  you 
make  a  compaft,  you  are  bound  by  it.  "U^hen  you 
make  a  promife,  you  muft  perform  it.  Eftablifli  the 
contrary  dodbrine,  and  mark  what  follows.  The 
whim  of  the  moment,  becomes  the.  law  of  the  land. 


40 

You  declare  to  the  world  that  you  are  no  longer  to 
be  trufted  ;  that  there  is  no  fafety,  no  fecurity,  in 
America.  Yon  ereft  a  beacon,  to  warn  all  men  of 
property  that  they  do  not  approach  your  fliores. 
Honefl:  men  will  avoid  you.  They  will  fly  from 
you.  They  will  confider  you  as  a  den  of  robbers. 
How  can  you  afk  any  one  to  put  confidence  in  you, 
"when  you  arc  the  firft  to  violate  your  own  con- 
trafts  ?  The  pofition,  therefore,  that  the  legiflature 
may  rightfully  repeal  every  law  made  by  a  preced- 
ing legiflature,  is  untrue,  when  teflied  merely  by 
reafon.  Still  more  untrue  is  it,  when  compared 
with  the  precepts  of  the  conftitution.  The  national 
legislature  of  America  does  not  possess  unlimited 
power ^ — //  has  no  pretence  to  omnipotence.  It  is  re- 
ftrained  by  the  conflitution.  And  what  does  the 
confl:itution  fay  ?  "  You  fliall  make  no  ex  pofl: 
fafto  law.**  Is  not  this  an  ex  pofl  fafto  law  ? 
Gentlemen,  to  flicw  that  we  may  properly  re- 
peal the  law  of  laft  fcfllon,  tell  us,  it  is  mere  theory. 
For  argument  fake,  it  fliall  be  granted.  What 
then  is  the  language  of  reafon  ?  Try  it.  Put  it  to 
the  test  of  experience.  If  experience,  after  two  or 
three  years  fliall  point  out  defeats,  or  if  they  can 
now  be  pointed  out,  amend  the  law.  What  refpe£l 
can  the  people  have  for  a  legiflature,  that  haflily, 
and  without  reflection,  meets  but  to  undo  the  a£ls 
of  its  predeceflfor  ?  Is  it  prudent,  is  it  decent,  even 
if  the  law  were  improper,  thus  to  commit  our  repu- 
tation, and  theirs  ?    Is  it  wife,  nay,  is  it  not  highly 


41 

dangerous,  to  make  this  call  on  the  people,  to  decide 
which  of  us  are  fools  ?     One  of  us  must  be. 

Such,  fir,  will  be  the  efFeft  of  this  hafty  repeal, 
on  the  public  mind.  What  will  it  be  on  the  injured 
man  who  feeks  redrefs  in  your  courts,  and  whom 
you  have  thus  deprived  of  his  right  ?  You  have 
faved  him  a  miferable  cent,  at  the  price,  perhaps,  of 
his  utter  ruin. 

The  honourable  mover  of  this  refolution,  fir,  in 
perfuading  us  to  adopt  it,  has  told  us  not  only  what 
is,  but  what  is  to  be.  He  has  told  us  that  fults  have 
decreafed,  and  that  they  will  decreafe.  Nay,  relying 
on  the  llrength  of  his  preconceptions,  he  tells  us, 
that  the  internal  taxes  will  be  repealed,  and  grounds 
the  expediency  of  repealing  the  judiciary  law,  upon 
the  annihilation  of  thofe  taxes.  Thus,  taking  for 
granted  the  non-exiftence  of  taxes  which  ftill  exiil, 
he  has  inferred  from  their  deflruftion,  and  the  con- 
fequent  ceflation  of  fuits,  the  inutility  of  the  judi- 
ciary eftablifhment :  And  when  he  fliall  have  car- 
ried his  prefent  point,  and  broken  down  that  fyf- 
tem,  he  will  tell  us  perhaps,  that  we  may  as  well 
abolifti  the  internal  taxes,  for  that  we  have  no 
judges  to  enforce  the  colleftion. 

But  what,  I  aik,  is  to  be  the  efFe6iof  thefe  re- 
peals, and  of  all  thefe  difmiifions  from  office  ?  I 
impeach  not  the  motives  of  gentlemen  who  advocate 
this  meafure.  In  my  heart,  I  believe  them  to  be 
upright.  But  they  fee  not  the  confequences.  We 
are  told,  that  the  flates  want,  and  ought  to  have 


42 

more  power.  We  arc  told,  that  they  are  the  legi- 
timate guardians,  from  whom  the  citizen  is  to  derive 
protcftion.  Their  judges  are,  I  fuppofc,  ro  execute 
our  laws.  Judges  appointed  by  flate  authority,  fup- 
ported  by  flate  falary,  looking  for  promotion  to 
ftate  influence  and  dependent  on  (late  party.  Are 
tbofe  the  judi^es  contemplated  by  this  conjiitution  ? 
There  are  fome  honourable  gentlemen  now  prefent 
who  fit  in  the  convention  when  it  was  formed.  I 
appeal  to  their  recolleflion.  Have  they  not  feen 
the  time,  when  the  fate  of  America  was  fufpended 
by  a  hair  ?  My  life  for  it,  if  another  be  afTcmbled, 
they  will  part  without  doing  any  thing.  Never  in 
the  flow  of  time,  was  there  a  moment  fo  propitious, 
as  that  in  which  the  convention  afl!embled.  The 
ftates  had  been  convinced,  by  melancholy  experi- 
ence, how  inadequate  they  were  to  the  management 
of  our  national  concerns.  The  paiTions  of  the  peo- 
ple were  lulled  to  fleep.  State  pride  flumbered — no 
fooner  was  the  conflitution  promulgated  than  it 
awoke.  Oppofition  was  formed.  It  was  a£tivc 
and  vigorous,  but  it  was  vain.  The  people  of 
America  bound  the  ftates  down  by  this  compa£l. 

There  was  in  it,  a  provifion  tending  to  exhibit 
the  fublimeft  fpeclacle  of  which  my  mind  can  form 
an  idea.  It  was  that  of  a  great  flate,  kneeling  at 
the  altar  of  juftice,  and  facrificing  its  pride  to  a  fenfe 
of  right.  I  flattered  myfelf,  that  America  would 
behold  this  fpcftacle — but  that  important  provifion 
has  been  repealed.     It  gave  way  to  the  oppofitioQ 


43 

of  the  ftates.  Ids  gone.  Anoth^er  great  bulwark  is 
now  to  be  removed,  and  you  are  told,  that  we  mud 
look  to  the  ftates  for  protection.  Yourinternail  re- 
venues alfo,  are  to  be  fwcpt  away ;  fo  that  no  evi- 
dence, no  exertion,  no  trace  of  the  national  power 
is  to  be  perceived  through  the  whole  interior  of 
America.  And  in  order  that  it  may  be  confined  to 
your  coafts,  and  be  known  tliere,  only  at  particular 
points,  your  fole  reliance  for  revenue,  is,  henceforth, 
to  be  placed  upon  commercial  duties.  In  this  reli- 
ance you  ivilJ  be  deceiiied.  But  what  is  to  be  the 
cffeft  of  all  thefe  changes  ?  I  am  afraid  to  fay  ;  I 
will  leave  it  to  the  feelings,  and  to  the  confciences 
of  geotiemea.  But  remember,  the  moment  this 
union  is  dissolved,  we  shall  no  longer  he  go'vemed  by 
votes. 

Examine  the  annals  of  hiftory.  Look  into  tlie 
records  of  time.  See  what  has  been  the  ruin  of 
every  republic.  The  vile  love  of />(3/>2^/<3'r//y.  Why 
are  we  here  ?  We  are  here  to  save  tJje people  from 
their  mofl  dangerous  enemy,  to  save  them  from  tkem- 
sd-ves.  What  caufcd  the  ruin  of  the  republics  of 
Greece  and  of  Rome  ?  Demagogues,  who,  by 
flattery,  prevailed  on  the  populace  to  eftablifli  def- 
potifm.  But  if  you  will  Ihutyour  eyes  to  the  light 
of  hiftory,  and  your  ears  to  the  voice  of  experience, 
fee,  at  leaft,  what  has  happened  in  your  own  times. 
In  1789,  it  was  no  longer  a  doubt  with  enlightened 
ftatefmen,  what  would  be  the  event  of  the  French 
revolution.     Before  the  firft  day  of  January,  1790, 

G 


4,4, 

the  only  queftion  was,  who  will  become  the  defpot. 
The  word  liberty,  indeed,  from  that  day  to  this, 
has  been  continually  founded  and  refounded,  but  the 
thing  had  no  exiftencc.  There  is  nothing  left  but 
the  word. 

We  are  now  about  to  violate  our  conftitution. 
Once  touch  it  with  unhallewed  hands,  facrifice  one 
of  its  important  provifions,  and  we  are  gone.  iVe 
commit  the  fate  of  America  to  the  mercy  of  time  and 
chance. 

I  hope  the  honourable  gentlemen  from  Mary- 
land will  pardon  me,  if,  from  the  fedtion  of  the  law 
he  has  cited,  I  deduce  an  inference  diametrically 
oppofite  to  that,  for  which  he  has  contended.     He 
has  told  us,  that  the  laft  Congrefs,  in  reducing  the 
judges  of  the  fupreme  court  from  fix  to  five,  have 
cxercifed  the  right  which  is  now  queilioned,  and 
made,  thereby,  a  legiflative  conftru6tion  of  this  claufc 
in  the  conftitution,  favourable  to  the  motion  on  your 
table.     But  look  at  the  law.     It  declares  that  the 
reduction  Ihall  not  take  place,  until,  by  death  or 
refignation,  there  fliall  remain  only  five.     Thus,  in 
the  very  moment  when  they  exprefs  their  opinion 
that  five  judges  are   fufficient,  they  acknowledge 
their  incapacity  to  remove  the  fixth.     The  legiflative 
conftru£lion,   therefore,  is,  that  they  have  not  the 
right  which  is  now  pretended. 

The  fame  honourable  member  has  cited  other 
cafes  from  the  fame  law,  which  (if  I  understood  his 
statement  J  amount  to  this,  that  Congrefs  have  en- 
creased  the  number  of  diftri^l  judges :  but  furely 


45 

this  cannot  prove  that  wc  have  a  right  to  diminish 
the  number.  It  will,  I  think,  appear,  fir,  that  this 
law,  fo  much  complained  of,  is  in  nowife  chargeable 
with  maintaining  the  dangerous  do£lrine  to  be  eftab- 
k  lifhed  by  its  repeal. 

The  whole  argument  in  favor  of  the  motion  comes 
to  this  fimple  propofition,  let  us  get  rid  of  thefe  judges 
tofave  expense.  We  can  repeal  the  law,  becaufe  we 
made  the  law,  we  have  the  power ^  let  us  exercife  it. 
But,  let  me  aflc  fir,  if  this  argument  will  not  go  to 
prove  any  thing.     Will  it  not  go  to  the  abolition  of 
the  debts  incurred  by  the  laft  Congrefs  ?  Shall  it  be 
faid  that  the  cafes  differ  becaufe  the  debt  refults 
from  a  contrail  with  the  creditor  fanftioned  by  the 
legiflature  ?  Sir,  you  have  made  a  contraft  with 
the  judges,  fan<ftioncd  by  higher  authority.    You  in- 
deed created  the  office,  but  when  created,  the  confti- 
tution  fixed  its  duration.  The  firfl  magiftrate  in  our 
country   with  this  conftitution  in  his  hand,  applies 
to  men  of  high  character  and  great  ability.     He 
a/ks  them  to  quit  a  lucrative  and  honorable  profef- 
fion,   to  abandon  their  former  purfuits,   to  break 
their  ancient  connections,  and  give  their  time,  their 
talents,    and  their  virtues,  to   the  fervic«  of  their 
country.     What  does  he  offer  as  a  compenfation  ? 
He  offers  a  high  and  honorable  office,  to  be  holden  by 
no  capricious  will,  to  depend  on  no  precarious  favor. 
The  duration  is  to  be  terminated  only  by  death  or 
misconduff.     The  legiflature    has   affixed  a  falary 
which  they  may  encrease,  but  cannot  diminijh.  Up-  . 


46 

on  th«fe  proffered  terras,  the  judge  accepts.  Ths 
contract  is  then  complete,  A  contract  which  refts  no 
longer  on  the  legiflativc  will.  He  is  immediately 
under  the  proteOion  of  the  conftitutioa  itfelf,  which, 
neither  the  Prcfident,  nor  the  legiflature,  can  defeat. 
His  authcrity  resit  en  the  same  foundation  with  yours. 
It  is  derived  from  the  fame  fource.  Will  you  pre- 
tend that  you  are  bound  by  your  contraft  with  him 
•who  lent  you  money,  at  eight  per  cent,  intereft,  and 
that  you  are  not  bound  by  your  contraft  with  hira, 
who  devotes  his  life  to  your  fervice  !  Will  you  fay 
that  the  confideratlon  you  have  received,  is  to  make 
a  difference,  and  that  paltry  pelf  is  to  be  preferred 
to  manly  worrh  ?  Is  that  to  be  refpefted,  and  this 
defpifed  ?  Surely  fir,  tl>e  contra£^,  with  a  judge,  is, 
of  all  others,  the  raofl  folemn.  It  is  fan^tioned  by 
the  highefl:  of  all  authority.  Can  you  then  violate 
it  ?  If  you  can,  you  may  throw  this  conflitution  into 
the  flames.     It  is  gone — It  is  dead. 

After  Mr.  Morris  concluded,  the  Senate  ad- 
journed to  Monday  the  eleventh.  That  day  they 
were  engaged  in  other  bufmefs,  fo  that  the  debate 
was  not  re  alTumed,  until  Tuefday,  the  twelfth, 
when  it  was  opened  by  Mr.  Jackson  of  Georgia, 
who  fpoke  as  follows  : 

I  rife  with  an  impreflion  of  awe  on  the  prefent 
queflion  ;  for  we  mnft  tread  on  conftitutional 
ground,  which  fliould  not  be  lightly  touched  on,  nor 
tQo  haflily  decided.  Every  ftep  we  take  ought  to 
be  well  examined,  and  our  minds  convinced  before 


47 

we  give  that  vote  which  cannot  be  recalled,  and 
which  will  fix  a  principle  on  legiflative  conftruftion, 
which,  perhaps,  will  prevail  as  long  aswc  remain  a 
nation. 

In  the  early  flage  of  this  difcuffion,  I  had  al- 
moft  determined  to  fay  nothing,  and  am  at  prefent 
determined  not  to  fay  much  ;  but  a  juflification  of 
the  vote  I  fhall  give,  has  impelled  me  to  offer  my 
reafons  for  it  to  the  flate  I  reprefent :  and  I  have 
made  up  my  mind  decidedly,  to  vote  for  the  refo- 
lution  before  you,  if  I  cannot  be  otherwife  con- 
vinced. 

I  conceive,  that  as  this  fubjeft  requires  from  us 
a  legiflative  conftruftion,  that  conftru^lion  may  as 
well,  and  indeed  better,  be  now  made ;  there  will, 
undoubtedly,  hereafter,  be  a  claftiing  of  powers.  I, 
therefore,  think  it  is  much  better  to  decide  it  now, 
when  the  injury  is  felt,  than  to  fuffer  it  to  take  root 
until  it  fliall  extort  a  different  and  more  violent 
decifion  than  that  of  a  deliberative  body. 

The  reafons  for  the  refolution  have  been  fo  ably 
dated,  and  ftrongly  enforced  by  the  gentleman  from 
Kentucky  who  moved  it,  as  to  expediency  and  the 
burthen  of  the  expenfes  on  the  prefent  fyftera,  I 
ihall  therefore  fay  little  about  them. 

The  expenfes,  however,  of  the  judiciary  eflab- 
lilhment,  I  deem  the  leafl  important  confideration 
attached  to  the  fubjeft..  Yet,  I  do  not  agree  with 
the  gentleman  who  has  fpoken,  that  the  expenfc 
is  trifling.     The  gentleman  from  New- York,  had 


48 

held  up  the  infignificancy  of  a  cent  a  pcrfon,  and  had 
told  us  of  Alfred's  purfe,  which  no  one  dared  to 
take  away.  Let  that  gentleman  calculate  twelve 
fouls  to  a  family,  and  he  will  fee  that  each  family 
would  pay  1 2  cents  ;  a  fum  however  infignificant 
to  the  pocket  of  that  gentleman,  that  might  furnifh 
a  comfortable  meal  to  a  poor  family.  With  the 
gentleman  from  Kentucky,  however,  I  contend  that 
the  principle  is  as  much  fettled  by  one  cent,  as  by  a 
million.  And  this  obfervation  becomes  incalculably 
dangerous,  if  it  is  to  be  drawn  into  precedent  on 
every  new  project  or  improper  meafure,  that  it 
cofls  but  a  cent  a  perfon.  And  as  to  the  remarks 
about  Alfred,  I  might  retaliate  upon  the  gentleman, 
and  fay,  that  at  that  day,  1 2  cents  might  have  beea 
a  year's  faiary  for  a  judge. 

We  have  been  a/ked,  if  wc  arc  afraid  of  having 
an  army  of  judges.  For  myfelf,  I  am  more  afraid 
of  an  army  of  judges  under  the  patronage  of  the 
Prefident,  than  of  an  army  of  foldicrs.  The  former 
can  do  us  more  mifchief.  They  may  deprive  us  of 
our  liberties,  if  attached  to  the  executive,  from  their 
decifions ;  and  from  the  tenure  of  office  contended 
for,  we  cannot  remove  them  ;  while  the  foldier, 
however  he  may  aft,  is  enlifled,  or  if  cnlifled,  only 
fubfiled  for  two  years  ;  whilft  the  judge  is  cnlifted 
for  life,  for  his  faiary  cannot  be  taken  from  hirti. 
[Sec  12  divifion,  8  Seft.  ift.  Art.  Constitution. ] 
Sir,  it  is  faid  thefe  evils  will  not  happen.  But  what 
fecurity  have  we  for  the  truth  of  the  declaration  ? 


49 

Have  we  not  feen  fedition  laws  ?  Have  we  not 
heard  judges  crying  out  through  the  land  fedition, 
and  aiking  thofe  whofe  duties  it  was  to  inquire,  is . 
there  no  fedition  here  ?  It  is  true,  the  fedition  law 
had  expired  with  the  lafl:  adminillration,  and  he 
trufled  it  would  not  exift,  or  at  lead  be  afted  on, 
under  the  virtuous  Jefferfon.  But  hereafter,  if  it 
fhould  exift,  your  judges  under  the  cry  of  fedition 
and  political  herefy,  may  place  half  your  citizens  in 
irons.  I  thank  God,  that  no  fuch  law  now  exifts, 
or  is  likely  to  exift.  I  thank  God,  that  we  are  not 
now  under  the  influence  of  an  intolerant  clergy,  as 
is  evident  from  their  abufe  of  the  Preiident ;  and 
that  we  are  not  under  dread  of  the  patronage  of 
judges,  is  manifeft  from  their  attack  on  the  Secre- 
tary of  State.  And  1  truft,  that  we  ftiall  long  keep 
this  patronage  off,  by  not  fanftioning  the  religious 
perfecution  of  the  clergy  on  the  one  hand,  or  the 
political  violence  of  the  judges  on  the  other. 

But  I  will  forbear  making  any  further  remarks 
of  this  kind,  and  go  into  an  examination  of  the  con- 
ftitutional  grounds. 

[Gen.  Jackson  here  quoted  the  3d  Art.  ift. 
Seft.  of  the  conftitution.j 

Here  then  are  two  tribunals.  Firft,  the  Supreme 
Court,  the  creature  of  the  conftitution,  the  creature 
oi  the  people  ;  the  other,  the  inferior  jurifditlions, 
the  creature  of  the  legiflature.  And  notwithftand- 
ing  the  play  of  gentlemen  upon  the  words  shall  and 
viay^  they  arej^x  naeaniijg  effejQti^Py.diiJ^li^ptYjThe 


50 

word,  sball^  applied  to  the  Supreme  Court,  is  im- 
f>erative  and  commanding,  while  the  word,  may,  ap- 
plied to  the  inferior  courts,  is  difcretionary,  and 
leaves  to  the  legiflature  a  Volition  to  a€l,  or  not  to 
aft,  as  it  fees  fit. 

Again,  whj  are  the  peculiar  and  exclufivc  pow- 
ers of  the  fupreme  court  defignated  in  the  following 
feftion  of  the  conflitution,  but  becaufe  the  conftitu- 
tion  confidered  that  tribunal  as  abfolutely  eftablilh- 
cd  ;  while  it  viewed  the  inferior  tribunals  as  de- 
pendent upon  the  will  of  the  legiflature.  i\nd  that 
this  was  the  cafe  was  evident  from  the  conduft  of 
the  Supreme  Court  on  the  penfion  aft,  which,  that 
court  had  fome  time  fince  declared  unconftitutional, 
and  which  declaration,  he  was  convinced,  would  not 
have  been  hazarded  by  an  inferior  tribunal. 

But  does  this  concluflou  reft:  on  judicial  power 
alone  ?  Is  it  no  where  elfe  found  under  other 
heads  of  confl:itutional  power  ?  Yes  fir,  under  the 
legiflative  head  of  power,  which  is  the  firft  grant  of 
power  made  by  the  conftiitution.  For  by  the  8th 
feftion  of  the  ift  article  of  the  conftitution,  after 
enumerating  the  power  of  laying  taxes,  &c.  it  is  de- 
clared in  the  oth  divifion  thereof,  "  to  extend  to 
conftitute  tribunals  inferior  to  the  fupreme  court.'* 
Here  then  is  a  Icgiflativc  power  given  exprefsly  to 
that  body,  without  reftriftion  or  application  to  any 
other  branch  of  the  national  government.  Let 
thofe  lawyers  who  hear  me  decide  on  the  conftruc- 
tion  of  all  grants  or  deeds,  if  two  grants  be  made  in 


51 

tlii^  itiMe  Fee^^^o^'wo  different  powers  or  perfons, 
if  the  firfl:  does  not  exclufively  vefli  ? 

t's'^hfeVe  a  fmgle  arguHietit,  that  caii  be  aiTigned 
to  oppofe  this  conftruftion  of  the  conftitution  ?  Do 
not  the  obicrvations  of  gentlemen,  who  infift  upon 
the  permanent  tenure  of  the  judicial  office,  place 
the  creature  <3^6'i'^  its. creator,  man  aboije  his  God, 
tbe  model  ahove  its  mechanic  ?  A  good  mechanic, 
when  he  cpnftrudls  a  machiiie,  trie's  it :  and  if  it 
does  not  fucceed,  be  either  mends  or  throws  it  away. 
Is  there  not  the  fame  neceflity  for  afting  in  the  fame 
way  with  the  inferior  tribunals  of  the  judiciary, 
which  is  no  other  than  the  machine  of  the  legifla- 
ture? 

But,  upon  the  principles  of  gentlemen,  the  law 
which  creates  a  judge,  cannot  be  touched.  The 
moment  It  is  paffed,  it  exifts  to  the  end  of  time. 
"What  is  the  implication  of  this  do£lrine  ?  To  alter- 
or  amend  what  may  greatly  require  alteration  or 
amendment,  it  is  necefTary  to  return  to  the  creator, 
and  to  enquire  what  this  creator  is.  My  principle 
is,  that  the  creator  is  the  people  themfelves  ;  that 
very  people  of  the  United  States,  whom  the  gen- 
tleman from  New- York  had  declared  ourfelves  to 
be  the  guardians  of,  to  fave  the  people  themfelves 
from  their  greatell  enemies  ;  and  to  fave  whom 
from  deflroying  themfelves  he  had  invoked  this, 
hcufe.  Good  God,  (aid  Mr.  Jackson,  is  it  poffi-| 
ble  that  I  have  heard  fuch  a  fentiment  in  this  body  ? ' 
Rather  iliould  I  have  expe6i:ed   to  have  heard  it 

H  ^ 


5^ 

founded  from  the  defpots  of  Turkey,  or  the  dc- 
ferts  of  Siberia,  than  to  have  heard  it  uttered  by 
an  enlightened  legiflator  of  a  free  country,  and  on 
this  floor. 

But,  let  us  examine  how  we  are  to  get  at  the 
creator.  If  the  hon.  gentleman  will  put  us  into  the 
way  of  doing  this  with  eflfeft,  I  will  abandon  all  my 
arguments  for  this  motion.  Look  to  the  conftitu- 
tion,  and  fee  how  it  is  to  be  amended  ?  It  can  only 
be  amended  on  the  recommendation  of  two  thirds 
of  both  houfes ;  or  on  the  application  of  two  thirds 
of  the  ftates,  a  convention  fliall  be  called,  who  arc 
to  propofe  amendments,  afterwards  to  be  ratified  by 
three-fourths  of  the  ftates. 

There  is  firfl  then  required  two  thirds  of  both 
houfes  of  Congrefs.  Can  this  two  thirds  be  found 
now,  or  is  there  any  probability  of  its  being  found 
for  20  years  to  come,  who  will  concur  in  making  the 
neceflary  alterations  in  the  judiciary  fyftcm  that  are 
now,  or  may  hereafter,  be  required  ?  On  this  fub- 
fubjefl  there  are  as  many  opinions  as  there  are  pcr- 
fons  on  this  floor.  I  have  indeed  never  found  two 
perfons  precifcly  agree.  How  then  can  wc  expect 
three-fourths  of  the  legiflatures  of  the  feveral  ftatcs 
to  agree,  when  we  cannot  agree  among  ourfelvcs. 
There  is  in  faft  no  amendment  which  could  reach 
the  cafe,  and  exhibit  to  view  all  the  requiiite  and 
i^ceflTary  regulations  for  fuch  an  extent  of  coun- 
try. Such  an  attempt  mult  form  a  volume,  a  con- 
flitution  by  itfclf,  and,  after  all,  fall  fliort  of  the  ob- 

jea. 


53 

power  to  alter  the  judiciary  fydem  vefts  not  here, 
it  vefts  no  where.  It  follows  from  the  ideas  of  gen- 
tlemen that  we  mufl  fubmit  to  all  the  evils  of  the 
prefent  fyflem,  though  it  fliould  exhibit  all  the  hor- 
rors of  the  inquifition. 

But  gentlemen  fay,  the  United  Stares  embrace 
a  vaft  extent  of  territory,  from  150010  i76oraileg 
in  length.  What  is  the  inevitable  deduftion  to  be 
drawn  from  this  faft  ?  Why,  that  a  fyflem  which 
is  to  apply  to  this  extent  of  country,  embracing  dif- 
ferent laws,  and  different  habits,  will  require  fre- 
quent alteration  ;  whereas,  if  we  are  tied  down 
to  a  fyflem  of  inferior  tribunals  once  formed,  wc 
cannot  even  touch  the  plan  of  the  judicial  fyflem 
of  the  little  diflrift  of  Columbia.  Nor  can  we 
touch  the  inferior  jurifdiflions  in  the  North- Weflern 
Territory,  or  in  the  Miffifippi  Territory,  in  both 
of  which  the  fydems  were  acknowledged  to  be  adapt- 
ed only  to  prefent  circumftances,  and  in  the  laft  of 
which,  the  rights  of  Georgia  were  implicated.  It 
follows,  that  v/hatever  thefe  rights  may  be,  the  fyf- 
tem  is  facred  ;  and  as  to  the  Miffifippi  Territory, 
if  grounded  on  this  do£lrine,  notwithflanding  the 
claim  of  Georgia,  her  jurifdit^ion  is  totally  loft.  To 
revert  to  the  fedition  law.  If  the  do£lrine  fupportcd 
now  were  true  ;  then  had  the  fedition  law  been  in- 
corporated as  a  fyflem  by  itfelf,  an  inferior  tribu- 
nal, and  officers  been  attached  to  it,  would  it  have 
been  perpetually  tacked  to  the  conflitution  j  that 


law  under  which  fo  many  of  our  citizens  had  been 
imprifoned,  for  writings  and  fpeakings,  and  one 
among  others  for  wifliing  that  the  wadding  of  a  gun 
had  been  lodged  in  a  certain  Prcfidential  part. 

The  sjentlcman  had  dwelt  on  the  inconvenien- 
CCS  and  evils  of  the  old  fyftem,  and  had  particularly 
condemned  that  part  of  it,  which  as  he  termed  it, 
converted  the  judges  into  pofl-boys.  But,  1  will  ap- 
peal to  the  gentleman,  if,  in  England,  where  fo  much 
more  bufmefs  is  done,  there  are  more  than  1 2  judges, 
and  whether  thofc  judges  do  not  ride  the  circuit- 
And  why  (hall  our  judges  not  ride  the  circuits  ? 
Shall  we  have  fix  judges  fitting  here  to  decide  cafes 
which  require  a  knowledge  of  the  laws,  the  morals, 
the  habits,  the  (late  of  property  of  the  feveral  dates  ? 
Would  not  this  knowledge  be  much  better  obtained 
by  their  riding  the  circuits,  and  in  the  dates  them- 
fclves  making  themfelves  acquainted  with  whatever 
relates  to  them,  and  the  cafes  of  appeals  to  come 
before  them.  It  has  been  remarked  by  a  celebrated 
writer  on  the  Englifli  conditution,  that  one  of  the 
grcateft  political  evils  that  could  befal  a  people,  was 
the  exiflence  of  large  judiciary  bodies.  To  illuftrate 
his  ideas  he  had  inftanced  the  Parliaments  of  France. 
Iftbefpirit,  which,  laftfcfUon,  gave  exiilence  tofix- 
tecn  new  judges,  continued,  who  could  fay  by  what 
number  they  would  be  limited.  They  might  indeed 
foon  become*  what  they  had  been  likened  to,  an 
army  of  judges. 


I  do  not  wifli  to  be  fevere  in  my  remarks  on  the 
conduft  oF  the  late  adminiilration.  I  admire  the 
private  charafter  of  Mr.  Adams.  But  I  do  believe 
the  fucceihon  of  his  poHtical  afts  tended  ultimately 
.tq. accumulate  in,  and  attach  all  powers  to,  a  parti- 
cular perfon  or  favourite  family.  ,;.^.^^j^,  ^j. 

If  I  wiflied  to  bellow  on  Mr.  Jefferfou  this  mafe 
of  patronage,  which  I  contend  this  horde  ot  officers 
beflows,  I  fhould  be  in  favour  of  the  bill  thaJ:  it  is 
now  moved  to  repeal  ;  but  as  a  political  perfon,  I 
am  no  more  for  Thomas  Jefferfon  than  for  John 
Adams.  When  he  afts  according  to  my  opi- 
nion, right,  I  will  fupport  him  ;  when  wrong,  op-r 
pofe  him  ;  and  I  trull  a  majority  on  this  floor  wili 
aft  in  the  fame  way.  ■ , 

A  gentleman  from  MafTachufetts,  has  afked,  if 
fuifs  will  go  on  diminifhing,  and  if  the  millenium  is 
fo  near  at  hand.  Sir,  different  opinions  are  held 
on,  this  fubjeft  ;  for  fome  fuppofe  the  millenium  to 
have  arrived  long  lince,  and  others  that  it  may  ar- 
rive, and,  others  again,  that  it  never  will  arrive  ; 
but  there  is  one  thing  certain,  that  the  more 
courts  you  have,  the  greater  temptation  there  is  for 
htigation,  and  more  fuits,  or  rather  evils,  will  flow 
from  them.  Law  itfelf  is  but  a  neceflfary  evil ;-  for 
if  mankind  were  perfed,  were  it  not  for  their  frail- 
ties and  paflions,  there  would  be  no  occaflan  for  it ; 
and  lawyers  are  a  flill  greater  evil,,  although,  he 
acknowledged,  a  nec^aryr , qbi^^  T!^^?  feldora 
difcourage  litigious  fuitors,  aad.fwarin  in  our 
courts  J  and  there  are  here,  as  well  as  in  every 


56 

other  country,  pei  fons  fo  fond  of  law  and  of  pcr- 
fecution,  that  rather  than  not  be  in  courts  at  all, 
they  would  direft  their  lawyers,  as  I  have  been  for- 
merly told  of  a  man  who  applied  for  advice,  and 
"was  informed  he  had  no  ground  of  a<flionj  to  bring 
then  a  fpite  aftion.  The  ftate  courts  are  open  and 
competent  to  mod  of  the  inferior  court  buiinefs,  and 
it  ought  to  be  thrown  into  that  channel  as  much  as 
pofllble. 

With  rcfpeft  to  the  ufefulnefs  of  the  additional 
judges,  created  by  theaftof  laftfeifion,  it  was  perhaps 
unneceflary  to  add  any  thing  to  what  had  been  fo  ably 
obferved  by  the  gentleman  from  Kentucky.  But  I 
will  ftate,  for  the  information  of  the  Senate,  that  in 
the  fouthern  ftates  of  Georgia,  South  and  North 
Carolina,  a  ground  of  great  litigation  is  removed, 
one  which  had  originated  at  leafl  two  hundred  and 
fifty  fuits.  Miller  &  Co.  had  obtained  a  patent  for 
a  ginning  machine,  (God  knew  where  it  came  from, 
but  I  believe  that  neither  of  them  invented  it,)  fo  as 
to  make  thofe  ftates  tributary  to  them,  and  embroil 
them  in  difputes.  South  Carolina  had  purchafed  the 
patent  for  fifty  thoufand  dollars,  and  had  therefore 
dried  up  this  fource  of  litigation  in  that  ftate. 

The  recovery  of  Britilh  debts,  too,  ^^as  nearly 
over.  This  had  been  a  fruitful  fource  of  litigation. 
Our  citizens  had  been  fued,  and  their  late  hard 
earnings  of  property  had  been  feized,  to  fatisfy  Bri- 
tifti  demands,  whilft  their  former  property  had  been 
taken  from  them  by  Britifh  arms,  during  the  war. 


i 


57 

I  am  furprifed  to  hear  the  cry,  that  our  liberties 
and  theconftitution  are  endangered,  from  the  quar- 
ter from  which  it  is  now  urged.  Whenfuch  remarks 
had  been  made  by  thofe  gentlemen  with  whom  I  ge- 
nerally afted  on  former  occafions,  the  inftantaneous 
cry  was  againft  demagogues,  who,  by  artfully  in- 
flaming the  paffions  of  the  people  againfl  the  govern- 
ment, wifhed  to  break  down  the  conflitution. 

A  gentleman  had  talked  about  a  vi<5tory  medi- 
tated over  the  conftitution.  Not  by  the  Prefident. 
Not  by  us.  By  whom  then  was  it  meditated  ?  Was 
it  by  the  Houfeof  Reprefentatives  ?  Or  was  it  by 
the  people  themfelves ;  that  fame  people  whom  we 
were  to  fave  from  their  greateft  enemy,  themfelves  i^ 
For  my  part,  I  believe  in  the  meditation  of  no  fuch 
viftory.  Sooner,  for  my  part,  than  participate  in  it, 
by  voting  for  this  refolution,  if  I  thought  it  would 
have  fuch  a  tendency,  I  would  cut  oiFmy  hand,  or 
cut  out  my  tongue.  I  refpeft  and  love  the  confti- 
tution,  and  my  great  wifh  is,  with  father  Paul,  to 
cry  out,  as  refpefts  it,  esto  perpetua. 

Mr.  Tracy,  of  Connecticut.  Feeble  as  I  am, 
I  have  thought  it  my  duty  to  offer  my  fentiments  on 
this  fubjeft.  Owing  to  the  feverity  of  indifpofitlon, 
I  have  not  been  in  my  place,  nor  have  I  heard  any 
of  the  difcuffion.  This  circumflance  will  be  ray 
apology,  if,  in  the  remarks  I  iliall  make,  repeti- 
tions fliall  occur,  on  the  one  hand,  and  apparent  in- 
attention to  arguments,  on  the  other. 


58 

Having  been  a  memlier  of  this  government  dur- 
ing feveral  years,  and  being  impreiTed  with  the 
diilicuUics  attending  the  formation  of  a  judiciary 
fyftem,  I  think  it  proper  to  give  a  concife  hiftory  of 
legiflative  proceedings,  on  this  important  fubjeft. 
Permit  me  to  fay,  fir,  that  the  firft  inflitution  of 
fuch  a  fyftem,  mufl  be  an  experiment.  It  is  impof- 
fibie  to  afcertain,  until  tried,  the  effects  of  a  fyflem, 
co-extenfive  with  the  vafl  territory  of  the  United 
States,  and  which  ought  to  be  adapted  to  the  differ- 
ent laws  and  habits  of  the  different  flates. 

Soon  after  the  firft  law  was  cnafted,  as  early  as 
the  year  1793,  and,  I  believe,  fooner,  complaints 
were  made  of  the  fyflem  of  circuit  courts.  The 
Union  tlien  being  divided  into  three  circuits,  and 
two  of  the  fix  judges  were  obliged  to  attend  each 
court,  if  one  judge  failed,  all  the  bufinefs,  ofcourfe, 
was  continued  to  the  next  term.  Judges  complain- 
ed of  the  di (lance  they  had  to  travel,  and  fuitors 
and  lawyers  complained  of  delays.  In  1793,  if  my 
memory  is  correft,  the  law  paffcd  allowing  one  judge 
to  attend,  with  the  diftrift  judge  in  each  diflri6t,  with 
fome  other  modifications  not  important  in  the  prefent 
view  of  the  fubjc(fl.  If,  by  reafon  of  di:!:ance,  bad- 
nefs  of  roads,  ficknefs,  or  any  other  accident,  this 
one  judge  failed  of  attendance,  or  if  he  and  the 
diflri(5l judge  differed  on  any  point,  a  delay  was  oc- 
cafioned. 

If  the  fame  judge  attended  the  fame  circuit  at 
the  next  term,  another  delay,  and  fo  on,  till  cxpe- 


59 

riment  taught  us,  that  fome  alteration  in  the  fyflera 
was  requifite.  It  will  be  recolle£led,  that  the  judges 
had  to  travel  over  this  cxtenfive  country,  twice  in 
each  year,  and  to  encounter  the  extremes  of  both 
heat  and  cold.  Of  this  they  complained  ;  but  this 
was  not  all ;  the  business  was  not  done. 

At  feveral  feflions  of  Congrefs,  the  fubjeft  of  the 
circuit  courts  was  before  them  ;  committees  were 
appointed  in  both  houfes,   and  in  more   than  one 
communication  of  the  executive,  at  the  commence- 
ment of  feflions,  a  reviiion  of  the  fyftem  was  re- 
commended.    I    cannot,   on   memory,   detail    the 
exa6l  particulars,  or   order  of  time  j  but   in   the 
fpeech  made  by  the  Prelident,  at  the  opening  of  the 
feifion  1799,  the  fubjeft  is  ilated  as  follows  :  "  To 
give  due  effeft  to  the  civil  adminiflration  of  govern- 
ment, and  to  enfure  a  juft  execution  of  the  laws,  a 
^evifion  and  amendment  of  the  judiciary  fyftem   is 
indifpenfably  neceflary.     In  this  cxtenfif  e  country, 
it  cannot  but  happen,  that  numerous  queftions,  re- 
fpefting  the  interpretation  of  the  laws,    and  the 
rights  and  duties  of  officers  and  citizens,  muft  arife. 
On  the  one  hand,  the  laws  fliould  be  executed;  on 
the  other,  individuals  (hould  be  guarded  from  op- 
preflion  ;    neither  of  thefe  objefts  is  fufficiently  af- 
fured,  under  the  prefent  organization  of  the  judi- 
cial department :   I  therefore  earneftly  recommend 
the   fubjeft  to  your  ferious    confideration.**     Al- 
though this  fubje£l:  had  been  recommended  before, 
and  committees  had  contemplated  a  revifion  and 

I 


60 

alteration  of  the  fyftem,  I  do  not  remember,  that  a 
bill  had  ever  been  prcfented  to  either  houfe  of  Con- 
grefs,  until  1799.  In  that  feflion,  a  bill  was  report- 
ed flmilar  in  its  features  to  the  aft  which  pafled  lafl: 
feiTion.  It  might  have  been  afted  upon  in  the 
Houfe  of  Reprefentatives ;  of  this,  however,  I  am 
not  confident ;  but  I  recolle£l:  it  was  printed,  and 
the  members  of  both  Houfes  had  it  before  them ; 
and,  at  the  lafl:  feiTion,  with  fome  alterations  and 
amendments,  it  was  enafted  into  a  law.  I  believe 
all  parties  wifhed  for  a  revifion  and  amendm.ent  of 
the  fyftem,  in  refpeft  to  circuit  courts  j  the  differ- 
ence of  opinion  was  principally  this ;  fome  fuppofed 
an  increafe  of  the  judges  of  the  fupreme  court,  to 
fuch  a  number,  as  would  render  the  duties  of  the 
circuit  practicable  for  them,  and  provide  for  the 
completion  of  bufmefs,  would  be  the  befl:  amend- 
ment ;  and  others  thought  the  law,  as  it  pafled, 
was  preferable. 

I  acknowledge,  that  in  deliberating  upon  this 
fubjeft,  we  always  aflumed  the  principle,  that  the 
cflablifliment  of  courts  was  important  to  proteft  the 
rights  of  the  people  ;  we  did  not  fear  an  army  of 
judges,  as  has  been  hinted  by  the  gentleman  who  was 
lafl  up  (Mr.  Jackson.)  In  this  opinion  we  might  be 
raiftaken,  but  we  were  honed  in  our  profcfllons ;  al- 
though fome  believed  that  more  of  the  bufinefs  of 
the  United  States  might  be  confided  to  the  ftatc 
courts  ;  yet,  it  is  not  within  my  recolleftion,  that 
the  queflion  was  conCdered,  in  any  meafure,  a  party 


queftion.  I  am  confident,  that  <it  the  feflion  ©f 
1799,  and  for  a  long  time  before  that,  the  friends 
qf  this  law,  which  eventually  paiTed  lad  winter, 
could  not,  nor  did  they  contemplate  any  change  of 
^dminiftration.  A  revifion  of  the  fyftem  was  long 
a  fubje^  of  deliberation  j  we  believed  an  increafc 
of  circuit  judges,  to  the  number  requifite  to  per- 
form the  duties,  would  be  an  inconvenient  increafis 
of  the  fupreme  court ;  and  though  it  was  defirablq 
for  the  judges  of  the  fupreme  court  to  fee  the  peo- 
ple, and  be  feen  of  them,  yet  the  preference  wa? 
given  to  the  fyftem  now  propofed  to  t>c  repealed. 
We  fuppofed  it  would  be  an  evil  to  increafe  the 
number  of  judges  of  the  fupreme  court  to  13,  15^ 
or  J  7.  A  court,  which  is  to  aft  together,  fhoukl 
jiot  be  numerous  j  on  this  fubjeft,  all  men  haye 
agreed ;  here  may  be  danger  of  an  "  ^rmy-  (^ 
judges^'*  as  the  gentleman  fays ;  for,  although  in 
Great  Britain,  the  twelve  judges  are  fometimes 
called  to  give  an  opinion ;  yet  no  man  will  feel 
equal  confidence  in  a  tribunal  of  judges  for  the  bu- 
finefs  of  a  court,  confiding  of  many,  as  of  few. 
From  three  to  five,  the  good  fenfc  and  experience  of 
all  nations  has  declared  to  be  about  the  proper  num- 
ber ;  and  we  thought  it  conducive  to  the  general 
good,  to  eftablijQi  tribunals  in  fuch  manner,  as  |p 
carry  juflice  to  the  door  of  every  man. 

In  this  modification  of  the  fyftem,  the  jurifdic- 
tion  of  the  circuit  court  has  been  extended,  as  it 
r-cfpeds  the  fura  in  demand,  of  which  they  ar^  to 


62 

take  cognizance,  and  as  it  refpe^s  the  difputes  which 
arile  concerning  the  title  of  lands  ;  and  exclufivc 
jurifdi(5lion  is  given  of  all  crimes  committed  within 
fifty  miles  of  their  place  of  feflion.  The  intention 
was,  to  infure  a  prompt  executioh  of  juftice,  and  ex- 
periment alone,  can  teft  the  wifdom  of  the  plan. 

I  take  it  to  be  a  found  rule,  adopted  by  all  wife 
and  deliberative  bodies,  not  to  repeal  an  exifting 
law,  until  experiment  fhall  have  difcovered  errors, 
or  unlefs  there  is  a  vice  fo  apparent  on  the  face  of 
the  law,  as  that  juftice  fhall  require  an  immediate 
deflruftion  of  it.  Has  there  been  time  to  gain  in- 
formation by  experiment  ?  No  man  will  pretend 
this  as  a  juftification  of  the  repeal ;  for  the  little 
time  the  law  has  been  in  force,  fo  far  as  I  have  ob- 
tained any  knowledge  upon  the  fubjeft,  it  has 
gained  credit. 

Another  maxim  in  legiflation,  I  think,  is  correft, 
not  to  give  up  a  law  in  exiftence,  which  is  converfant 
aboift  extenfive  and  important  concerns  of  the  com- 
munity, and  about  which  there  is  a  necefCty  of  en- 
afting  fome  law,  without  feeing  clearly  what  can  be 
fubflituted  for  it,  and  that  the  fubflitute  has  manifefl 
advantages.  This  refolution  leads  to  no  rcfult  but 
a  repeal.  1  have  flated  the  errors  of  the  former  fyf- 
tem  of  circuit  courts,  and  if  expense  is  an  objeftion 
to  the  prefent  fyflcm,  as  I  have  heard  urged  out  of 
doors,  the  fame,  or  nearly  as  much,  mufl  be  incur- 
red, if  we  increafe  the  number  of  judges  of  the 
fuprcrae  court,  to  eifeft  a  reform  in  the  circuit  court. 


63 

Why  repeal  this  law,  then,  and  leave  us  without 
any,  or  without  any  adequate  to  its  purpofe  ? 

Is  this  fyftcm  fo  very  vicious,  that   it   defervcs 
nothing  but  abhorrence  and  dcflru^lion  ?    It  cods 
us  a  Httle  more  than  thirty  thoufand  dollars,  and  by 
it  the  number  of  circuit  judges  is  increafed  to  fix- 
teen  ;  and  by  it  likewife  is  contemplated  reducing 
the  number  of  fuprerae  judges  to  five,  when  it  can 
constitutionally  he  done.     Is  the  expenfe  an  objeft, 
when  by  that  expenfe  we  extend  the  jurifdiftion  of 
a  court  over  this  vaftly  extenfive  growing  country, 
and  carry  law  and  proteftion  to  every  man  ?     This 
country  is  in  a  Angular  condition  ;  a  great  traft  of 
unfettlcd  lands  is  peopling  with  rapidity,  and  nu- 
merous immigrations  increafe  our  population  far  be- 
yond its  natural  increafe ;   is  it  not  of  importance, 
that  courts  fliould  be  located  among  them,  early  to 
correft  the  reftlefs  fpirit,  which  is  frequent  in  new 
and  fcattered  fettlements  ?     And  are  not  the  immi- 
grations compofed  of  fuch  as  require  the  prompt 
alfiftance  of  the  law,  to  preferve  among  them  regu- 
larity ?     Punifliment,  to  us,   and  to  all  good  men, 
fhoy.ld  bea  ftrangework,butto  prevent  crimes,  is  the 
work  of  a  God.     I  fpeak  to  gentlemen,  who  have, 
many  of  them,  graced  the  judges'  bench,  and  adorn- 
ed the  profellional  robe  they   have  worn,    and  am 
therefore  not  obliged  to  be  particular  that  I   may 
be  underftood  ;  a  word  to  the  wife  will  be  fufficient. 
A  judiciary,  in  a  national  point  of  view,  is  abfolute- 
ly  neceiTary,  and  an  extenfion  of  it  to  every  national 


64 

purpofc  is  equally  necefTary.  To  depend  upon  flate 
courts,  not  under  obligations,  nor  amenable  to 
you,  befides  having  as  much  bufinefs  allotted  to  them 
by  the  refpeclive  dates  as  jthey  can  accomplifli,  and 
depending  upon  them,  and  not  on  us  for  exiftence  ; 
will  require  only  to  be  mentioned,  to  be  exploded. 
Locating  your  judges  In  various  parts  of  the  coun* 
try,  by  them  promulgating  the  national  laws,  which 
it  is  well  known  lias  been  a  fubjeft  of  great  diiiicul- 
ty,  and  giving  them  daily  opportunity  of  mixing 
with  people,  not  well  difpofed  to  order  and  law  j 
may  prevent  diforders,  and  infuri  eftions,  and  feve 
millions  of  expenfe,  which  pecuniary  faving  will  be 
the  lead  of  the  important  events  arifing  from  fuch  a 
fyftem. 

But  it  will  probably  be  faid,  the  courts  have 
not  bufinefs  to  employ  them ;  and  the  documents 
received  from  the  executive  will  be  produced  in 
evidence.  And  it  may  further  be  faid,  the  Prefi- 
dent  has,  in  his  meflage,  recommended  a  repeal 
of  this  law.  The  words  of  the  meflage  are,  "  The 
judiciary  fyftem  of  the  United  States,  and  efpccially 
that  portion  of  it  lately  erefted,  will  of  courfe  prc- 
fent  itfelf  to  the  contemplation  of  Congrcfs ;  and 
that  they  may  be  able  to  judge  of  the  proportion 
which  the  inftitution  bears  to  the  bufinefs  it  has  to 
perform,  I  have  caufed  to  be  procured  from  the  fe- 
veral  ftates,  and  now  lay  before  Congrefs,  an  exaft 
ftatement  of  all  the  caufes  decided  fincc  the  firft 
cftabhfhracnt  of  the  courts,  and  of  thofc  that  were 


65 

depending  when  additional  courts  and  judges  ^wcre 
brought  -in  to  their  aid." 

Is  this  a  recommendation  to  repeal  ?  Suppofe 
for  argument  fake  it  is.  Let  us  look  at  this  "  ex- 
a£V**  ftatement.  In  the  recapitulation,  19th  page 
of  document  8,  there  appears  to  have  been  inftitut- 
ed  8276  fuits,  and  pending  when  this  court  went 
into  operation,  1539.  But  on  further  infpeftion,  it 
will  be  found  that  M-aryland  is  entirely  omitted  : 
this  omiffion  is  unaccountable,  fmce  the  means  of 
knowledge  were  fo  near  at  hand.  119  caufes  un- 
decided in  TennefTee ;  134  in  North-Carolina,  and 
331  in  Virginia,  arc  omitted  ;  making  in  the  whole 
an  error  of  5  or  600  caufes.  In  addition  to  this  the 
number  of  fuits  in  New-York  are  not  ftated  corre^- 
ly  by  the  ftatement  of  the  attorney  when  he  made 
the  return,  and  not  one  is  carried  out  as  pending  in 
the  recapitulation  ;  and  the  return  of  MalTachufetts 
is  incorred  on  its  face ;  fo  that  nothing  more  than 
conjefture  can  be  derived  from  this  *'  exac^"  ftate- 
ment. The  Prefident  is  ufually  more  correft,  and 
how  this  peremptory  language  in  the  meflage  com- 
' ports  with  the  document,  every  man  can  fee  for 
"iiimfelf.  I  am  not  difpofed  to  attribute  intentional 
error  to  any  man,  much  Icfs  to  the  executive  ;  but 
in  point  of  ufe  the  ftatement  amounts  to  nothing. 
We  may  juft  as  well  imagine  without  it  as  with  it, 
how  many  fuits  were  pending,  at  the  inftitution  of 
the  new  courts. 


# 


66 


But  I  acknowledge  that  the  number  of  fuits 
pending  is  not,  in  my  mind,  any  criterion  upon  which 
a  corre<fl  judgment  may  be  formed  of  the  utility  or 
ncceiTity  of  courts  ;  or  to  fay  the  moft  of  it,  it  forms 
but  one  ground  of  judging,  and  that  not  a  very 
conclufive  one.  In  a  country  thinly  fettled,  it  is 
frequently  as  important  to  eftablifh  courts,  as  in  a 
more  populous  country  ;  and  as  this  government  is 
fituated,  it  maybe  more  fo;  and  yet  the  number  of 
fuits  will  bear  no  proportion.  Why  did  we  eftab- 
lifh  courts  in  our  territorial  government  but  on  this 
principle  ? 

A  number  of  courts  properly  located  will  keep 
the  bufmcfs  of  any  country  in  fuch  condition  as  but 
few  fuits  will  be  inflituted;  and  courts,  badly  orga- 
nized, will  difcourage  fuitors,  and  there  will  be  but 
few  a^lions  returned.  From  the  number  of  fuits 
alone,  there  can  no  found  judgment  be  formed. 

But  there  is  another  objeftion  to  the  repeal 
of  the  judiciary  law,  which  in  my  mind  is  conclu- 
five ;  I  mean  the  letter  and  fpirit  of  the  conflitu- 
tion. 

In  the  formation  of  every  government  in  which 
the  people  have  a  fliare  in  its  adminiflration,  fomc 
edablilhed  and  indifputable  principles  muft  be  adopt- 
ed. In  our  government,  the  formation  of  a  legifla- 
tive,  executive,  and  judiciary  power,  is  one  of  the 
incontrovertible  principles,  and  that  each  fhould  be 
independent  of  the  other  fo  far  as  human  frailty 
will  permit,  is  equally  incontrovertible.     Will  it  be 


67 

expected,  that  I  fliould  quote  Sidney,  I5e  Lolme, 
Montcfquieu,  and  a  hofl:  of  elementary  writers  to 
prove  this  affertion  ?  There  is  probably  no  conflift 
of  opinion  upon  this  fubje£l.  When  we  look  into 
our  conflitution  of  government,  we  fliall  find  in 
every  part  of  it,  a  clofe  and  undeviating  attention  to 
this  principle.  Our  particular  form  is  fingular  in 
its  requirements,  that  full  force  and  operation  be 
given  to  this  all  important  principle.  Our  powers 
are  limited  :  many  a£ls  of  fovereignty  are  prohibited 
to  the  national  government,  and  retained  by  the 
dates,  and  many  reftraints  are  irapofed  upon  ftatc 
fovereignty.  If  either,  by  accident  or  defign,  fhould 
exceed  its  -powers,  there  is  the  utmoft  necelTity  that 
fome  timely  checks,  equal  to  every  exigency,  fliould 
be  interpofed.  The  judiciary  is  eflablifhed  by  the 
conflitution  for  that  Valuable  purpofe. 

.  In  the  Britifh  government  the  legiflature  is  om- 
nipotent to  every  legillative  cfFeft,  and  is  a  perpe- 
tual convention  for  almofl  every  conftitutional  pur- 
pofe. Hence  it  is  cafy  to  difcern  the  different  part 
which  mud  be  affigned  to  the  judiciary  in  the  two 
kinds  of  government.  In  England  the  executive  has 
the  moll;  extenfive  powers  ;  the  fword  or  the  milita- 
ry force  ;•  the  right  of  making  war  ;  and,  in  effe6^  the 
command  of  all  the  wealth  of  the  nation,  with  an 
unqualified  veto  to  every  legillative  aft.  It  is,  there- 
fore, rational  for  that  nation  to  preferve  their  judicia- 
ry completely  independent  of  their  fovereign.     In 

K 


68 

the  United  States  the  caution  mufl:  be  applied  to  the 
cxifting  danger  ;  the  judiciary  are  to  be  a  check  on 
the  executive,  but  mod  emphatically  to  the  legifla- 
turc  of  the  Union,  and  thofe  of  the  feveral  dates. 
What  fecurity  is  there  to  an  individual,  if  the  legif- 
lature  of  the  Union,  or  any  particular  (late,  fhould 
pafs  a  law  making  any  of  his  tranfa^lions  criminal, 
which  took  place  anterior  to  the  date  of  the  law  ? 
None  in  this  world,  but  by  an  appeal  to  the  judicia- 
ry of  the  United  States,  where  he  will  obtain  a  de- 
cifion  that  the  law  itfelf  is  unconflitutional  and  void, 
or  by  a  refort  to  revolutionary  principles,  and  excit- 
ing a  civil  war.  With  a  view  to  thofe  principles, 
and  knowing  that  the  framers  of  our  conftiiution 
were  fully  poflcfTed  of  them,  let  us  examine  the  in- 
ftrument  itfelf.  Article  3d,  fe£l.  ift.  "  The  judi- 
cial power  of  the  United  States  (hall  be  vefted  in 
one  fupreme  court,  and  in  fuch  inferior  courts  as  the 
Congrefs  may,  from  time  to  time,  ordain  and  tftab- 
lifli.  The  judges,  both  of  the  fupreme  and  inferior 
courts,  {hall  hold  their  offices  during  good  beha- 
viour ;  and  fhall,  at  dated  times,  receive  for  their 
ferviccs,  a  compenfation  which  (hall  not  be  dimini(h- 
cd  during  their  continuance  m  ofHce.**  Are  there 
words  in  the  Knglifli  language  more  explicit  ?  Is 
there  any  condition  annexed  to  the  judge's  tenure  of 
office,  other  than  good  behaviour  ?  Of  whom  (hall 
your  judges  be  independent  ?  Wc  are  led  to  an  er- 
roneous decifipn  on  this,  as  well  as  many  other  go- 
vernmental  fubjefts,    by    couflantly    recurring   to 


69 

Great-Britain.  That  their  coui-ta  fhould  be  inde- 
pendent of  their  fovereign  is  an  important  objeft  ; 
he  is  the  fountain  of  honour  and  power,  and  can  do 
no  wrong.  Our  Prefident,  atleaft  for  feveral  years 
paft,  has  been  confidered  the  fountain  of  difhonour 
and  weaknefs,  and  if  there  was  any  maxim  upon 
the  fubjeft,  it  was  that  he  could  do  no  right.  Of 
courfe  the  great  objeft  of  the  independence  of  the 
judiciary  muft  here  have  reference  not  only  to  our 
executive,  but  our  legiflaturc.  1  he  legiflature, 
with  us,  is  the  fountain  of  power.  No  perfon  will 
fay  that  the  judges  of  the  fupreme  court  can  be  re- 
moved, unlefs  by  impeachment  and  conviflion  of 
mifbehaviour.  But  the  judges  of  the  inferior  courts, 
as  foon  as  ordained  and  eftabliflied,  are  placed  upon 
ptecifely  the  fame  grounds  of  independence  with 
the  judges  of  the  fupreme  court.  Congrefs  may 
take  their  own  time  to  ordain  and  eftablifh,  but  the 

inftant  that  is  done,  all  the  rights  of  independence 
attach  to  them. 

If  this  reafoning  is  correft,  can  you  repeal  a  law 
eftablifhing  an  inferior  court,  under  the  conftitu- 
tion  ?  Will  it  be  faid,  that  although  you  cannot  re- 
move the  judge  from  office,  yet  you  can  remove 
his  office  from  him  ?  Is  murder  prohibited,  and  may 
you  fhut  a  man  up,  and  deprive  him  ofluftenance, 
till  he  dies,  and  this  not  be  denominated  murder  ? 
The  danger  in  our  government  is,  and  always  will 
be,  that  the  legifla  ive  body  will  become  reitive,  and, 
perhaps,  unintentionally  break  down  the  barriers  of 


70 

our  conditution.  It  is  incidental  to  man,  and  a 
part  of  our  imperfcftions,  to  believe,  that  power 
may  be  fafely  lodged  in  our  hands.  We  have  the 
weahh  of  the  nation  at  command,  and  are  inveflcd 
with  almofl  irrcfiflible  ftrength  ;  the  judiciary  has 
neither  force  nor  weakh  to  proteft  itfelf.  1  hat  we 
can  with  propriety  modify  our  judiciary  fyflem,  fo 
that  we  always  leave  the  judges  independei:t,  is  a 
correal  and  reafonable  pofition  ;  but  if  we  can,  by 
repealing  a  law,  remove  them,  they  are  in  the  worft 
flate  of  dependence. 

I  have  exhaufted  myfelf,  and  I  fear,  the  patience 
of  the  Senate,  and  regret,  exceedingly,  that  my  in- 
difpofition  prevented  me  from  a  belter  preparation 
upon  this  important  queftion.  I  have  attempted 
to  fhow,  that  the  edabliihment  of  a  judiciary  fyflem, 
for  this  country,  is,  and  mufl:  be  attended  with  diffi- 
culties, and  that  the  legiflature  have  taken  fuch 
meafures  as,  to  a  majority  of  them,  appeared  mofl 
reafonable,  after  much  attention  to  the  fubje<5l,  to 
cure  the  evils  of  the  old  fyflem,  by  the  fubftitution 
of  a  new  fyflem. 

And  let  it  be  remarked,  that  the  law,  now  under 
confidcration,  although  it  modified  our  courts,  is 
flridly  guarded  againfl  a  violation  of  the  principles 
I  have  here  contended  for.  The  fupreme  court  is 
to  confifl  of  but  five  judges  after  the  next  vacancy 
(hall  happen  ;  and  the  diflrift  judges  of  Tenncliec 
and  Kentucky  are  affociatcd  with  a  circuit  judge,  to 
perform  the  duties  of  circuit  judges,  whicb  duties,  it 


•V 


71 

is  well  known,  they  performed  ever  fince  the  diflri(*t 
courts  were  eftabliftied  ;  and,  in  the  claufe  which 
incrcafes  their  falarics,  they  are  flyled  the  diftrift 
judges  ;  and  all  the  alteration  made  in  their  cir- 
cumftances,  is,  an  increafe  of  duty  and  of  faiary. 
I  have  attempted  to  Ihew  the  primary  necefTity  of 
rendering  the  judiciary  of  this  confederated  govern- 
ment, completely  independent,  not  only  of  the  exe- 
cutive, but,  efpecially  fo,  of  the  legiflature. 

And,  by  adverting  to  the  words  of  the  inftru- 
ment  itfelf,  I  have  attempted  to  ftiow,  that  the  judi- 
ciary are  fecured,  fo  far  as  words  can  do  it,  as  well 
from  a  circuitous  removal,  by  repealing  the  law  con- 
ftituting  the  court  of  which  they  are  judges,  as  by 

any  direft  removal. 

I  am  llrongly  imprelTed  with  the  magnitude  of 

this  fubje<5l.  Perhaps  the  whims  of  a  fick  man's 
fancy  have  too  much  pofTefled  me,  to  view  it  correft- 
ly.  But,  fir,  I  apprehend  the  repeal  of  this  law  will 
involve  in  it  the  total  deflruftion  of  our  conftitution. 
It  is  fupported  by  three  independent  pillars  ;  the 
legiflative,  executive,  and  judiciary  ;  and,  ifany  ru-de 
hand  ftiould  pluck  either  of  them  away,  the  beauti- 
ful fabric  muft  tumble  into  ruins. 

The  judiciary  is  the  center  pillar,  and  a  fupport 
to  each,  by  checking  both.  On  the  one  fide  is  the 
fword.  and,  on  the  other,  the  wealth  of  the  nation  ; 
and  it  has  no  inherent  capacity  to  defend  itfelf. 
Thefe  very  circumftances  united,  may  provoke  an 
attack,   and  whichever  power  prevails  fo  far  as  to 


72 

vcft  in  itfelf  diredlly,  or  indire^Iy,  the  power  of  the 
judiciary  by  rendering  it  dependent  ;  it  is  the  pre- 
cife  definition  of  tyranny,  and  mufl  produce  its 
cffefts.  The  Goths  and  Vandals  deftroyed  not  only 
the  government  of  Rome,  but  the  city  itlclf ;  they 
were  favages,  and  felt  the  lofs  of  neither  ;  but  if  it 
be  poflible  there  can  be  an  intention,  like  the  fon  of 
Manoah,  with  his  ilrcngth,  without  his  godlinefs, 
to  tumble  this  fabric  to  the  earth,  let  it  be  remem- 
bered it  will  cru(h,  in  one  undiflinguiflied  ruin,  its 
perpetrators,  with  thofe  whom  they  may  call  their 
political  enemies. 

I  molt  earneftly  entreat  gentlemen  to  paufc 
and  confider ;  I  apprehend  the  repeal  of  this  aft 
will  be  the  hand  writing  on  the  wall,  damping 
Mene  Tckci  upon  all  we  hold  dear  and  valuable  in 
our  conftitution.  Let  not  the  imputation  of  inftabi- 
lity,  which  is  cart  upon  all  popular  bodies,  be  veri- 
fied by  us  ;  in  adopting  laws  to  day,  and  repealing 
them  to-morrow,  for  no  reafon,  but  that  we  have 
the  power  and  willexercife  ic. 

This  conftitution  is  an  invaluable  inheritance.  If 
we  make  inroads  upon  it  and  deftroy  it,  n6  matter 
with  what  intentions,  it  cannot  be  replaced,  we  Hiall 
never  have  another. 

Ihe  Senate  adjourned,  after  Mr.  Tracy,  had 
concluded  his  fpeech,  to  the  next  day  (Wedncfday 
the  thirteenth)  when  the  debate  was  opened  by  Mr. 
Mason  of  Virginia,  as  foUowR  : 


73 

I  feel  forac  degree  of  cmbarralTnicnt  in  ofTering 
my  fentiments  on  a  fubjeft  fo  fully,  and  fo  ably  difcuf- 
fcd.  I  believe  that  the  ground  taken  by  my  friend 
from  Kentucky,  has  not  been  fliakcn  by  any  argu- 
ments urged  in  oppofition  to  the  refolution  on  the 
table.  Yet  as  fome  obfervations  have  been  made 
calculated  to  excite  fenfibility  not  here,  but  abroad  ; 
as  they  appear  to  have  been  made  with  a  view  to 
that  end  ;  and  as  an  alarm  has  been  attempt- 
ed to  be  excited  on  conflitutional  ground,  I  think 
the  obfervations  ought  not  to  go  unnoticed. 

I  agree  with  gentlemen,  that  it  is  important  in 
a  well  regulated  government  that  the  judicial  depart- 
ment fliould  be  independent.  But  I  have  never 
been  among  thofe  who  have  carried  this  idea  to  the 
extent,  which  fecms  at  this  day  to  be  fafhionable. 
Though  of  opinion  that  each  department  ought  to 
difcharge  its  proper  duties  free  from  the  fear  of  the 
others,  yet  I  have  never  believed  that  they  ought  to 
be  independent  of  the  nation  itfelf.  Much  lefs  have 
I  believed  it  proper,  or  that  our  conflitution  autho- 
rizes our  courts  of  juftice,  to  control  the  other  de- 
partments of  the  government. 

All  the  departments  of  a  popular  government 
muft  depend  on  popular  opinion.  None  can  exifl 
without  the  affections  of  the  people,  and  if  either  be 
placed  in  fuch  a  (ituation  as  to  be  independent  of 
the  nation,  it  will  foon  lofe  that  affection,  which  i« 
eflential  to  its  durable  exiftence. 


74 

Without,  however,  going  into  an  inquiiy  of 
what  kind  of  organization  is  moft  fit  for  our  tribu- 
nals, witho'it  inquiring  into  the  fitnefs  of  making 
the  judges  independent  for  life,  I  am  willing  to  en- 
ter into  a  confideration,  not  of  what  ought  to  be, 
but  of  what  is.  For,  whatever  may  be  my  opinion 
of  this  conftitution,  I  am  to  refpeft  it  as  the  charter 
under  which  we  are  affembled. 

When  I  view  the  provifions  of  the  conftitution 
on  this  fubjefl,  I  obferve  a  clear  difl:in<5lion  between 
the  fupremc  court,  and  other  courts.  I  am  fenfible, 
that  when  we  come  to  make  verbal  criticifms,  any 
gentleman,  of  a  fportive  imagination,  may  amufe  our 
fancies  by  a  play  upon  words.  But  this  is  not  the 
way  to  get  rid  of  a  genuine  conflruftion  of  the  con- 
ftitution. With  regard  to  the  inflitution  of  thefu- 
preme  courts  the  words  are  imperative  ;  while  with 
regard  to  inferior  tribunals,  they  are  difcretionary. 
The  ^rdjhal/  ;  the  laft  nu/y  be  eftablifhed.  And, 
furely,  we  are  to  infer  from  the  wife  fages  that  form- 
ed that  conflitution,  that  nothing  was  introduced 
into  it  in  vain.  In  conftruing  it  we  ought  to  give 
due  weight,  not  only  to  fentences,  but  to  words,  and 
even  to  every  point  and  comma.  When,  therefore, 
the  conftitution,  ufmg  this  language,  fays  a  fupremc 
court  Jhalihc  eflabliftierf,  are  we  not  juftified  in  con- 
fidcringit  as  of  conftitutional  creation  ;  and,  on  the 
other  hand,  from  the  language  applied  to  inferior 
courts,  are  we  not  equally  juftified  in  confidcring 
their  cftabliftiment  as  dependent  upon  the  legifla- 


75 

ture,  who  7nay^  from  time  to  time,  ordain  them,  «s 
the  public  good  requires.  Can  any  other  meaning 
be  applied  to  the  words  '*  from  time  to  time  ?" 
And  nothing  can  ;be  more  important  on  this  fubjeft 
than  that  the  legiilatur«  fliould  have  power  from 
time  to  time,  to  create,  to  annul,  or  to  modify  the 
courts,  as  the  public  good  jnay  require — not  mere- 
ly to-day,  but  forever  ;  and  whenever  a  change  of 
circumflauces  may  fuggeft  the  propriety  of  a  differ- 
ent organization.  On  this  point,  there  is  great  force 
in  the  remark  of  the  gentleman  from  Georgia,  that 
among  the  enumerated  powers  given,  to  Congrefs, 
while  there  is  no  mention  made  of  the  fupreme 
court,  the  power  of  eftabliflilng  inferior  courts  is 
exprefsly  given.  Why  this  difference,  but  that  the 
fupreme  court  was  confidered  by  the  framers  of  the 
conllitution,  as  ellabliflied  by  the  conilitution  j 
while  they  confidered  the  inferior  courts  as  depen- 
dent upon  the  will  of  the  leg.iflature. 

We  find  the  phrafe,  from  time  to  ti?ne,  in  another 
part  of  the  conflitution.  The  3d  feet,  of  the  2nd 
art.  lays,  the  Prelident  fliall,  from  tif?2e  to  time,  give 
to  the  Congrefs  information  of  the  ftate  of  the 
Union.  That  is,  he  fliall,  occafionally,  as  he  fees  fit, 
give  ftich  information.  So  (hall  Congrefs  occafion- 
ally,  as  they  fee  fit,  eftablifli,  annul,  or  regulate 
mferior  courts,  accordingly  as  the  public  welfare  re- 
quires. 

The  arguments  of  gentlemen  go  upon  a  miftaken 
principle.     They  .exprefs  the  liveliefl  fympathy  and 

L 


76 

commiferation  for  this  poor,  this  weak  department 
of  the  government.     They  tell  us  the  judges  have 
a  veiled  right  to  their  offices,  a  right  not   now  de- 
rived from  the  law,  but  from  the  conflitution  ;  and 
they  affimilatc  their  cafe  to  that  of  a  public  debt ; 
to  the  right  of  a  corporation  ;  a  turnpike  company, 
or  a  toll  bridge.     But  is  not  all  this  reafoning  predi- 
cated on  the  principle  that  the  courts  are  eftablifli- 
ed,  not  for  the  public  benefit,  but  for  the  emolu- 
ment of  the  judges  ;  not  to  promote  the  interefls  of 
the  people,  but  to  further  the  interefls  of  the  judges; 
not  to  adminifter  juflice,  but  for  their  perfonal  ag- 
grandizement.    1  believe  that  a  government  ought 
to  proceed  upon  different  principles.     It  ought  to 
eftabliih  only  thofe  inftituiions  which  the  good  of 
the  community  requires  ;  when  that  good  ceafes  to 
need  them,  they  ought  to  be  put  down,  and  of  con- 
fequence  the  judges  (hould  hold  their  appointments 
fo  long,  and  no  longer,  than  the  public  welfare  re- 
quires. 

If  the  arguments  now  urged  be  correal,  that  a 
court  once  eftablifhed  cannot  be  vacated,  we  arc 
led  into  the  greatefl  abfurdities.  Congrefs  might 
deem  it  expedient  to  eflablifh  a  court  for  particular 
purpofes  limited  as  to  its  obje£ls  or  duration.  For 
inflance,  the  United  States  has  taken  poffciTion  of 
the  Miflifippi  Territory,  rightfully  or  not,  I  will 
not  pretend  to  fay.  This  territory  has  been  here- 
tofore in  the  hands  of  various  maflers,  viz.  France, 
England,  Spain,  and  Georgia  j  and  it  is  now  poffef- 


77 

fed  by  the  United  States.     AH  thefe  governments 
except  the  United  States,  made  certain  grants  of 
land  in   the   territory,    and  certain  fettlers  fpread 
their  conflifting  patents  over  the  country.     Thefe 
different  titles  will  open  a  wide  field  for  litigation, 
which  will  require  able  tribunals  to  decide  upon. 
Suppofe,  then,  Congrefs  ihould  eftablifli  fpecial  tri- 
bunals to  continue  for  three,  four,  or  five  years,  to 
fettle  thefe  claims.     Judges   would  be  appointed. 
They  would  be  the  judges  of  an  inferior  court.     If 
the  conftruftion  of  the  conflitution  now  contended 
for,  be  eflabliflied,  what  would  the  judges  fay,  when 
the  period  for  which  they  were  appointed  expir- 
ed ?     Would  they  not  fay  we  belong  to  inferior 
courts  ?     Would  they  not  laugh  at  you,  when  you 
told  them  their  term  of  office  was  out  ?     Would 
they  not  fay,  in  the  language  of  the  gentleman  from 
New- York,  though  the  law  that  creates  us  is  tem- 
porary, we  are  in  by  the  conjiitution  ?      Have  we 
not  heard  this  do(flrine  fupported  in  the  memorable 
cafe  of  the  mandamus,  lately  before  the  fupreme 
court  ?     Was  it  not  there  faid  that  though  the  law 
had  a  right  to  eftabliili  the  office  of  a  juflice  of  the 
peace,  yet  it  had  not  a  right  to  abridge  its  duration 
to  five  years  j   that  it  was  right  in  making  the  juf- 
tices,  but  unconftitutional  in  limiting  their  periods 
of  office  ;    that  being  a  judicial  officer   he  had  a 
right  to  hold  his  office  during  life  or  (what  is  about 
the  fame  thing)  during  good  behaviour,  in  defpite  of 
the  law  which  created  him,  and  in  the  very  a£l  of 
creation,  limiting  his  official  life  to  five  years. 


78 

I  may  notice  another  cafe,  more  likely  to  happen, 
to  fhevv  the  abfiirdity  of  this  conflru6iion.     Congrefs 
have  aflumed  jurifdiftion  over  the  MiiTifippi  Terri- 
tory, and  have  edablifhed  a  court  compofed  of  three 
judges,  which  court  is  as  much  an  inferior  court,  as 
the  circuit  or  difiri^t  courts.     Of  this  jurifdiftion 
Georgia  denies  the  validity.     The   contefl:  is  in  a 
train  of  fettlement.     Suppofe  it  fliall  turn  out  that 
the  United  States  are  convinced  of  the  injuftice  of 
their  claim,  rclinquifli  it,  and  reftore  the  territory 
to  Georgia,  what  becomes  of  the  judges  ?     Their 
offices,  their  duties,  are  gone  !     Yet  they  will  tell 
you,  we  are  veiled  with  certain  conftitutional  rights 
of  which  you  cannot  deprive  us.     It  is  true,  the  ter- 
ritory is  no  longer  yours.     You  have  no  jurifdic- 
tion,  and  we  have  no  power  ;  yet  we  are  judges  by 
the  conftitution.     We  hold  our  offices  during  good 
behaviour,  and  we  will  behave  well  as  long  as  you 
will  let  us.   Is  not  this  a  llrangc  fituation  ?  You  have 
judges  in  a  territory  over  which  you  have  no  jurif- 
diclion ;    and  you  have  officers  which  are  pcrfecl 
fmecures,  penfioners  for  life.     Such  an  abfurdity  I 
am  fure  the  conditution  never  meant  to  juftify.     It 
is  an  abfurdity  equally  repugnant  to  the  letter  and  the 
genius  of  the  coniHtution. 

Suppofe  another  cafe.  Suppofe,  what  I  trud 
will  never  happen,  a  war  ffiould  take  place.  Sup- 
pofe that  apart  of  the  United  States  fliould  be  con- 
quered, and  that  we  (hould  be  compelled  to  cede  it  to 
a  foreign  nation.  In  thi>  diflrid,  your  jurifdidion  is 


79 

gone ;  your  power  is  gone  ;  the  office  of  a  judge 
is  deftroyed,  and  yet  the  officer  holds  his  appoint- 
ment for  life  ;  This  cafe  may  be  confidered  as  in- 
applicable to  the  United  States.  It  may  be  faid, 
that  we  have  no  right  to  cede  a  (late,  or  a  part  of  a 
ftatc.  But  I  believe  a  different  fentiment  has 
been  entertained,  and  perhaps  in  this  houfe. 

But  fuppofe  this  event  to  occur  in  relation  to 
territory  not  attached  to  a  flate.  Suppofe  the  go- 
vernment fhould  find  it  neceffary  to  eftablifh  an  in- 
ferior court  in  an  ifland  of  Lake  Superior  :  Sup- 
pofe it  fliould  be  the  fortune  of  war  to  place  in  tl^e 
pofTeffion  of  the  enemy,  one  of  the  ftates  ;  and  the 
queftion  fliall  be,  will  you  give  up  this  territory  in 
the  frozen  regions  of  the  lakes,  or  fuffer  the  flate  to 
remain  in  the  poffefTion  of  the  enemy,  you  being 
unable  to  take  it  from  him  ?  If  you  give  up  the 
territory,  your  court  is  annihilated,  yet  the  judges 
claim  a  tenure  in  their  offices  for  life ;  and  this 
in  a  country  that  no  longer  belongs  to  you — Does 
not  fuch  a  refult  ftrike  every  mind  as  abfurd  ? 
Is  it  not  apparent,  that  whatever  claim  fuch  men, 
might  have  upon  thegenerofity  of  the  government, 
they  can  have  no  claim  to  ofHces  that  do  not  exifl. 
Nay,  further,  it  might  upon  the  conftruclion  now 
contended  for,  be  infifled,  that  the  conllitution  for- 
bids you  to  make  a  peace  upon  thofe  terms ;  that 
by  ceding  an  inconflderable  territory,  which  you  did 
not  want,  to  fecure  a  whole  flate,  you  would  abo- 
Hfh  the  office  of  a  judge,  which  the  legiflature  had 
there  ereded  ;   that  this  would  be  an  exprefs  viola- 


30 

tion  of  your  conflitution  ;  and,  therefore,  you,  muft 
leave  a  whole  (late  in  the  poiTeffion  of  the  enemy, 
unlcfs  this  judge  would  give  you  leave  to  make  terras 
by  rcfigning  his  office. 

I  believe,  fir,  that  we  fhould  not  differ  much,  if 
we  came  t©  a  proper  underflanding  of  the  true  prin- 
ciple on  which  this  queflion  depends.  If  we  eflab- 
lifh  the  principle,  that  from  the  nature  and  effcnce 
of  public  inflitutions,  they  are  made  for  the  good 
of  the  people,  and  not  for  that  of  the  individual 
who  adminiflers  them,  we  fhall  experience  no  diffi- 
culty. Gentlemen,  in  fpeaking  of  a  judge,  had  em- 
phatically called  it  tis  office.  But,  it  is  not  his  of- 
fice, but  the  ofHce  of  the  people.  He  is  only  the 
perfon  appointed  to  perform  certain  fcrvices  requir- 
ed by  the  public  good,  and  when  thofe  fervices  are 
no  longer  neceffary  for  that  public  good,  his  duties 
arc  at  an  end,  his  fervices  may  be  difpenfcd  with, 
and  he  ought  to  retire  to  private  life. 

The  cafe  had  been  affimilated  to  a  bridge.  But  he 
who  builds  a  bridge  docs  a  public  good,  that  enlirles 
him  to  a  growing  renumeraiion  for  ever.  But  here 
the  good  is  temporary.  The  truth  is,  the  judge  is 
more  like  the  man  who  collcfts  the  toll,  and  who 
receives  the  promife  of  an  annual  payment,  as  long 
as  he  difchargcs  his  duties  faithfully.  But  a  flood 
comes,  and  fweeps  away  the  bridge ;  will  the  toll 
gatherer,  like  tliejudge,  contend,  that  though  the 
bridge  is  gone,  and  the  owner  ruined,  that  he  fliall, 
notwithflanding,  receive  his  compcnfation  for  life. 


81 

though  he  cannot  continue  thofe  ferviccs  for  which 
his  annual  ftipend  was  to  be  the  compenfation  and 
reward. 

But  it  would  feem,  that  the  argument  urged 
on  this  occafion,  and  the  general  courfe  of  our  legif- 
lation  had  been  grounded  more  on  the  convenience 
and  emoluments  of  thofe  appointed  to  office,  than 
on  grounds  of  public  utility.  Firfl:,  we  appointed  fix 
judges  of  the  fupreme  court,  divided  the  Uni- 
ted States  into  three  circuits,  two  judges  to  ride 
each  circuit,  in  which,  with  the  diftri 61:  judge,  to 
form  a  court.  The  law  fixed  the  duties  and  the 
compenfation,  and  gentlemen  of  the  firfl  character 
were  ready  to  accept  the  places.  The  falaries  in- 
deed had  been  then  thought  high ;  in  fome  parts 
of  the  Union  they  were  thought  enormous.  But,  a 
little  time  pafled  before  they  complained  of  the 
hardfhips  of  their  duties  j  and  the  law  was  altered 
not  fo  much  for  public  good,  as  for  their  perfonal 
convenience.  Where  two  judges  were  required  to 
hold  a  court,  one  was  now  declared  fufficient.  Thus 
you  continued  their  full  falaries,  while  you  lopped 
off  half  their  duties.  Shortly  after,  you  afiigned 
them,  under  the  penfion  law,  inconfiderable  duties  ; 
and  they  refufed  to  perform  them.  Thus,  while 
they  {hewed  themfelves  ready  to  abate  of  their  du- 
ties, they  adhered  to  their  falaries.  Next  came  the 
law  of  lafl:  fefiion,  which  takes  away  all  their  duties. 
It  leaves  them  fimply  a  court  of  appeals.  And  what 
have  they  got  to  do  ?     To  try  i  o  fuits  j    for  fuch  is 


8S 

the  number  how  on  their  docket,  as  appears  from  a 
certificate  juft  put  into  my  hands  ;  and  the  avcraga 
number  on  their  docket  amoui^s  to  from  8  to  lo. 
Thus,  for  the  trial  of  the  immenfe  number  of  8  or 
lo  fuits,  you  have  fix  JAidges,  one  with  a  falary  of 
4,000,  and  5  others  with  falaries  of  3,500  dollars 
each. 

I  fear,  that  if  yon  take  away  from  thefe  judges, 
that  whicli  they  ought  officially  to  do,  they  will  be 
induced  from  the  want  of  employment,  to  do  that 
which  they  ought  not  to  do  ;  and  if  they  have  no 
good  to  do,  they  may  do  mifchief.  They  may  be 
induced,  perhaps,  to  fet  about  that  work  gentlemen 
feem  fo  fond  of.  They  may,  as  gentlemen  have  lold 
us,  hold  the  conftiiution  in  one  hand,  and  the  law 
in  the  other,  and  fay  to  the  departments  of  the  go- 
vernment ;  (o  far  fhall  you  go,  and  no  farther.  This 
independence  of  the  judiciary,  fomuch  defired,  will, 
I  fear,  fir,  if  encouraged,  or  tolerated,  foon  become 
fomething  like  fuprcmacy.  They  will,  indeed,  form 
the  main  pillar  of  this  goodly  fabric  ;  tliey  will 
foon  become  the  only  remainin;!^  pillar,  and  they 
will  prcfently  become  fo  ftrong,  as  to  crufli  and  ab- 
forb  all  the  others  into  their  folid  mafs. 

We  liave  been  told,  that  no  (late  in  the  Union 
has  prcfumed  to  touch  the  judiciary  eftablifhment, 
excepting  the  flate  of  Marv'and.  1  will  not  anfwer 
for  others ;  but  with  refpeft  to  Virginia,  I  will  an- 
fwer has  that  (he,  to  uchcd  it.  Her  conflitutional  pro- 
vifion  for  the  independence  of  the  judges  is  nearly 


83 

fimilar  to  that  of  the  United  Statfesy  and  yet  flie  has^ 
eflabliilied,  modifiedyaiid  entirely  put  down  particu- 
lar departments  of  hei'  fyfktm. 

[Here  Gen.  Mason  went  into  a  particularifa- 
tion  of  the  different  changes  the  judiciary  fyftem  of 
Virginia  had  undergone,]] 

After  th6  particularifatiori,  Gbh.  Mason  |>rbv 
ceeded  : — 

And  yet  our  judges,  who  are  extremely  tenaci- 
ous of  their  rights,  did  not  complain.  They* 
thought,  as  I  think,  that  they  fliould  ftot  be  remov- 
ed from  their  offices  that  others  might  be  phced  fir 
them,  and  that,  while  they  did  continue  in  office, 
their  falaries  fhould  be  preferved  to  them.  And  I 
believe  the  whole  of  our  conftitutional  provifiori 
Amounts  to  this  :  that,  unlike  other  officers  appoint- 
ed by  the  Prefident,  they  fhall  not  be  removed  by 
him  ;  that  their  falaries  (liall  not  be  diminiflied  by 
fhe  legiflature  ;  and  that,  while  the  legiilature  may' 
continue  any  particular  judicial  eflablilhment  under 
which  a  judge  is  appointed,  he  ihall  hold  that  ap- 
pointment in  defiance  of  both  the  other  departmeiits' 
of  government.  A  judge  itiay  fay,  I  am  not  to  be 
turned  out  of  office  by  the  Preiident  on  the  one 
hand,  or  flarved  hy  the  legiflature  on  the  other.  " 
He  may  fay  to  the  legiflature,  or  the  Prefident,  and 
to  both  of  rhem  combined,  you  fliall  not  turn  mc 
out  of  this  office  as  long  as  it  exiflis,  to  gratify  your 
cimiity  to  me,  or  your  favouritifm  to  another  per- 
%;'^  i  M 


84 

foil ;  fo  long  as  the  intcrcft:  and  convenience  of  the 
people  require  this  inftitution,  they  are  entitled  to 
my  fervices,  they  fhall  have  them,  and  I  will  be  paid 
for  them,  to  the  utmofl:  farthing,  in  fpite  of  your 
difpleafure  or  caprice. 

Notwithflanding  the  remarks  of  gentlemen,  I 
am  inclined  to  think  thefe  ideas  of  the  extreme  in- 
dependence of  the  judges,  and  the  limited  powers  of 
the  legiflature,  are  not  very  old,  but  that  they  arc 
of  modern  origin,  and  have  grown  up  fince  the  lad 
feffion  of  Congrefs.     For,  in  the  law  paffed  laft  fef- 
fion,  that  very  law  which   it   is  now  propofed  to 
repeal,  is  to  be  found  a  praftical  expofition  in  direft 
hoftiiity    with  the   principle    now   contended   for, 
which  does  not  betray  that  facred  regard  for  the 
office  of  a  judge,  that  is,  on  this  occafion,  profeffed  : 
in  that  very  law  will  be  found  a  claufe  which  abo- 
hfhes  two  diftrift  courts.     The  24th  feftion  fays, 
cxprefsly,  "  The  diftrift  courts  of  Kentucky   and 
Tenneflee  fhall  be,  and  hereby  are,  aboliflied."  Will 
gentlemen  tell  this  houfe  how  this  exprefs  provifion 
came  into  the  adl  of  the  laft:  felTion  ;  and  will  they 
fay,  that  though  they  voted  for  this  law,  yet  no 
power  cxifts  in  the  legiflatare  to  abolifh  a  court  ?  It 
is  true,  that  it  has  been  faid,  that  though  you  put 
down  two  diftri£t  courts,  you  promoted  the  officers 
by  increafmg  their  falaries,  and  making  them  judges 
of  the  circuit  courts  ;  but  the  fa£l  is,  you  have  abo- 
liihed  their  offices  j  they  are  judges  no  longer  of 
the  dift;ri<fls  of  Kentucky  and  Tenneffi:e  j   and  they 


85 

are,  to  every  purpofe,  whatever  may  be  their  name, 
in  reality,  circuit  judges.  Though  you  have  not 
leflened  their  falaries,  you  have  deprived  them  of 
their  offices.  However,  therefore,  gentlemen  may 
calculate  as  to  the  benefit,  or  injury,  done  thefe  two 
judges,  the  principle  is  not  aiFe<fted  by  any  refult — 
their  offices  are  gone. 

It  is  not  enough  to  fay,  that  though  you  deftroy- 
ed  their  offices,  you  offered  them  others  with 
higher  falaries.  You  took  away  from  them,  in 
exprefs  terms,  their  offices,  by  abolifhing  the  offices. 
You  had  dripped  them  of  their  offices,  you  had 
robbed  them  of  their  vested  right ^  and  then,  to 
make  friends,  offisred  them  a  compenfation ;  but 
whether  the  compenfation  thus  offisred  for  the  de- 
privation they  had  fuffisred,  was  really  equivalent 
to  their  lofs,  is  a  mere  matter  of  calculation,  and 
does  not  affisft  the  conftitutional  principle.  It  is 
proper,  however,  to  obferve,  that  they  were  no  par- 
ties to  the  propofed  compromife,  and  that,  indeed, 
they  had  no  choice  left  them.  They  were  obliged 
to  accept  of  what  you  offered  them,  or  have  no- 
thing. If  they  did  not  agree  to  become  judges  ot 
the  newly  organized  circuit  courts,  they  could  not 
remain  judges  of  the  diftrift  courts,  for  thefe  courts 
were  abfolutely  and  completely  aboiifhed. 

Were  I,  Mr.  Prefident,  to  make  a  calculation  on 
the  comparative  increafe  of  duties  and  additional 
falary,  in  the  cafe  of  one  of  thofe  gentlemen  (Judge 
Innes,  of  Kentucky)  I  fliould  have  no  hefitation  to 


86 

fay,  that  the  bargain,  which  has  been  made  without 
his  conlcnt,  ^nd  without  his  being  a  party  to  it,  is 
a  very  bad  one  for  him.  Knowing,  too,  his  parti- 
cular fituation,  I  am  pcrfuaded,  that  if  the  law  had 
left  him  any  eleftion  between  his  former  and  new 
fituation,  he  would  have  preferred  remaining 
where  he  was ;  and,  without  a  moment's  hefitation, 
he  would  have  reje^cd  your  proffered  promotion, 
as  it  is  called.  This  gentleman  refides  within  a  few 
miles  of  Frankfort,  where,  as  diftrift  judge  of  Ken- 
tucky, he  held  his  court.  Attached  to  domeftic 
life,  and  enjoying  all  its  felicities,  engaged  in,  and 
pleafed  with,  agricultural  purfuits,  he  was  never 
under  the  neceflity,  even  during  the  fclllons  of 
tlie  courts,  to  flecp  out  of  his  own  bed  one  night, 
or  to  be  feparated  a  fingle  day  from  his  family.  He 
could,  every  morning,  give  direfiions  for  the  ma- 
nagement of  his  farm,  and  return,  early  enough  in 
the  evening,  to  fee  whether  his  orders  were  exe- 
puied. 

How  is  he  fituated  under  the  change  which  has 
been  forced  upon  him  ?  Inllcad  of  attending  one 
court,  alraofl  at  his  door,  your  late  law  requires 
him  to  attend  four — the  nearefl:  at  Bairdftown, 
fifty  or  fixty  miles  from  liome.  You  oblige  him  to 
travel,  through  dreary  and  inhofpitable  regions,  to 
the  North  Wellern  Territory,  fomething  fliort  of 
an  hundred  miles  ;  and  much  greater  diftances  to., 
and  through.  Hill  worfe  countries,  Knoxville,  and 
Naihville,  in  Tennellce.    In  going  from  one  to  the 


87 

other  of  thofc  lafl:  mentioned  places;  he  will  haye  (t^ 
pafs  through  the  country  of  the  Cherokee  ln4ians, 
nearly  one  hundred  miles  over  the  Cumberland 
mountains,  where  he  will  he  expofed  to  every  in- 
clemency of  the  weather,  without  a  flielter  to  teth*c 
to,  for  there  is  not  a  houfe,  or  a  hut,  in  the  whplc 
journey ;  a  journey,  in  which  all  traveilers  are 
obliged,  at  all  times,  .and  of  unavoidable  neceffity, 
to  lleep  one  night  at  lead,  and  from  the  fall  of  rains, 
and  rife  of  water  courfes,  often  many  nights,  with- 
out a  roof  to  cover  them  from  the  heating  of  the 
florm  J  and,  moreover,  where  they  are  liable,  at 
every  ftcp,  to  be  robbed  by  the  Indians,  as  Imyfclf 
experienced  paffing  through  that  wildernefs.  Can 
it  be  fuppofed,  that  the  five  hundred  dollars,  added 
to  the  falary  of  Judge  Innes,  fliould,  by  a  perfon 
Ctuated  as  he  was,  be  deemed  a  fufficient  compeafa- 
tion  for  the  additional  dudes,  the  toils,  the  dangers, 
and  the  deprivations,  to  which  that  law  fiibjeded 
him.  In  continuing  to  ferve  his  country,  lam  furc 
he  mufl  have  been  influenced  more  by  a  fenfe  of  duty 
than  a  regard  to  private  interefl ;  or  a  belief,  that 
the  change  was,  ia  any  refpedl,  advantageous  to 
him.  '.'^^'^  ■' 

By  the  7thfe6lion,  of  the  law  of  the  laft  felllon, 
which  transforms  tlie  diftri<5t  into  circuit  courts, 
which  melts  down  the  judges  and  recoins  them,  it 
is  ena^ed.  That  there  fhall  be  a  circuit  court,  com- 
pofed  of  one  new  circuit  judge  and  two  old  diftrift 
judges,  to  be  called  the  fixth  circuit.     Have  you 


88 

not  then  eflabli/lied  a  new  office,  by  the  deflruftion 
of  the  old  one  ?  Have  you  not  done  more  ?  Have 
you  not  violated  thcconftitution,  by  declaring,  bylaw, 
who  fhall  fiil  this  new  office  j  though  the  conflitu- 
tion  declares,  article  2d,  feftion  2d,  That  the  Prefi- 
dent  Ihall  nominate,  and,  by  and  with  the  advice 
and  confcnt  of  the  Senate,  fliall  appoint  all  officers 
which  ftiall  be  eflablilhed  by  law. 

Where  were  thcfe  guardians  of  the  conflitution, 
thcfe  vigilant  fentinels  of  our  rights  and  liberties, 
when  this  law  paiTed  ?  Were  they  afleep  upon  their 
pofl  ?  Where  was  the  gentleman  from  New- York, 
who  had,  on  this  debate,  made  fuch  a  noble  fland  in 
favour  of  a  violated  conflitution  ?  Where  was  the 
j^jax  Tclamon  of  his  party,  or,  to  ufe  hi$  own  more 
correft  expreffion,  the  facl'iQn  to  which  he  belong- 
ed ?  Where  was  the  hero  with  his  feven-fold  ftiield  ? 
Not  of  bull's  hide,  but  of  brafs ;  prepared  to  pre- 
vent or  to  puniffi  this  Trojan  rape  which  he  now 
fees  meditated  upon  the  conflitution  of  his  country, 

by  a  wicked /^(7/o«  ?  Where  was  Hercules,  that  he 
did  not  crufli  this  den  of  robbers  that  broke 
into  the  fanfluary  of  the  conflitution  ?  Was  he 
forgetful  of  his  duty  ?  Were  his  nerves  unflrung  ? 
Or  was  he  the  very  leader  of  the  band  that  broke 
down  thcfe  conftitutional  ramparts  ? 

1  fhali  now,  {\x,   trouble  you  with  a   few   re- 
marks on  the  expediency  of  repealing  this  law.     It 
has  been  faid,  that  there  is  nothing  peculiarly  dif- 
guflful  in  this  law  ;  that  there  has  been  no  public 


89 

clamour  exdced  againfl:  it ;  that  it  was  enafted  with 
folemnity,  on  calm  and  deliberate  reflection  ;  and 
that  time  has  not  been  yet  given  to  teft  it  by  expe- 
rience. 

As  no  member,  who  has  taken  part  in  debate, 
was  a  member  of  this  body,  when  the  law  pafled,  I 
will  fay  fomething  of  its  hiftory.  I  am  not  difpofed 
to  excite  the  fenfibility  of  gentlemen,  by  any  remarks 
which  I  (hall  make,  or  to  call  up  unpleafant  recol- 
Jeftions  of  paft  fcenes.  But  when  I  hear  it  faid, 
that  this  law  was  pafled  with  calmnefs,  after  mature 
reflexion,  and  that  we  are  now,  in  a  fit  of  paflion, 
going  to  undo  what  was  thus  wifely  done,  T  think  it 
neceflfary  that  the  public  fliould  have  a  corre£l  fl:ate- 
ment. 

It  is  true,  that,  under  the  laft  adminiftration, 
when  there  exift:ed,  (what,  I  trufl:,  will  never,  in  an 
equal  degree,  exifl:  again)  an  immoderate  thirfl:  for 
executive  patronage,  a  propofition  was  made  to 
eftablifli  a  new  judiciary  fyfl:em  ;  a  fyfl:em  worfe 
than  the  prefent ;  as  it  propofed,  according  to  my 
recolle£lion,  thirty-eight  judges,  inflead  of  fixteen. 
This  law  was  very  near  pafling.  It  was,  however, 
rejefted  in  the  Houfe  of  Reprefentatives,  by  a  very 
fmall  majority.  But  it  was  circulated  as  a  project 
of  a  law,  among  the  people.  It  was  illy  received. 
It  was  thought  too  rank  a  things  and  met  with  ge» 
neral  difapprobation  throughout  the  United  States, 
as  far  as  I  have  been  able  to  learn.  After  this  re- 
ception, it  was  foftened  down  to  the  plan  introdu- 


90 

ced  at  the  laft  ftlTion.  What  temper  accompanied 
the  progrefs  of  the  h'lW,  ill  the  other  houfe,  I  know 
noty  or,  if  I  did  know,  would  it  be  proper  for  me 
here  to  fay.  But,  with  refpe£l  to  the  afts  of  this- 
body,  I  am  not  of  opinion,  that  they  added  any  dig- 
nity to  our  common  courfe  of  procedure.  The  bill 
itras  referred  to  a  committee,  who,  though  it  wa» 
very  long,  reported  it  without  any  amendments 
Various  amendments  were  offered,  fome  of  which 
Were  admitted  to  be  proper.  Biit  they  were  not 
received.  One,  indeed,  propofcd  by  a  member 
from  Connecticut,  who  was  chairmail  of  the  com- 
mittee, and  w^s  then  hoflile  to  the  plan,  did  pafs, 
in  the  early  ftages  of  the  bill  ;  but,  on  the  third 
reading,  it  was  expunged.  All  amendments,  pro- 
pofed  by  the  minority,  were  uniformly  rejeflcd,  by 
a  (Icady,  inflexible,  and  uddeviating  majority.  I 
confefs,  that  I  faw  no  paflloil,  but  I  certainly  did  fee 
great  pertinacity  ;  fomething  like  what  the  gentle- 
man, from  Connecticut,  had  termed  a  holding  fjst. 
No  amendments  were  admitted  ;  when  offered,  we 
were  told,  No,  you  may  get  them  introduced  by  a 
rider,  or  fupplemeutary  bill,  or  in  any  other  way 
you  pleafe  ;  but  down  this  bill  mufl  go ;  it  muft: 
be  crammed  down  your  throats.  This  was  not  the 
precife  phrafe  j  but  fuch  was  the  amount  of  what 
was  faid. 

I  will  fay,  that  not  an  argument  was  urged  in 
favour  of  the  bill,  not  a  word  to  fhew  the  necefTity 
or  propriety  of  the  change.     Yet,  wc  are  told,  that 


91 


there  was  great  dignity,  great  folemuity,  in  its  prp- 
grefs  and  pafTage  ! 

But  there  is  fomething  undignified  in  thus  hafli- 
]y  repealing  this  law  !  in  thus  yielding  ourfelves  to 
the  fluctuations  of  public  opinion  !  So  we  are  told. 
But  if  there  be  blame,  on  whom  does  it  fall  ?  Not 
on  us  who  refpefted  the  public  opinion  when  this 
law  was  pafTed,  and  who  ftill  rcfpeft  it.  But  on 
thofe,  who,  in  defiance  of  pubhc  opinion,  pafled. 
this  law,  after  that  public  opinion  had  been  deci- 
fivcly  expreffed.  The  revolution  in  public  opinion 
had  taken  place  before  the  introduclion  of  this  pro- 
jeft  ;  the  people  of  the  United  States  had  determin- 
ed to  commit  their  affairs  to  new  agents  ;  already 
had  the  confidence  of  the  people  been  transferred 
from  their  then  rulers,  into  other  hands.  After 
this  expofition  of  the  national  will,  and  this  new 
depofit  of  the  national  confidence,  the  gentlemen 
ftiould  haveieft  untouched,  this  important  and  deli- 
cate fubjeft  ;  a  fubjeft  on  which  the  people  could 
not  be  reconciled  to  their  views,  even  in  the  flood- 
tide  of  their  power  and  influence  ;  they  ihould 
have  forborne,  till  agents,  better  acquainted  with 
the  national  will,  becaufe  more  recently  conflituted 
its  organs,  had  come  into  the  government.  This 
would  have  been  more  dignified  than  to  feize  the 
critical  moment,  when  power  was  paffing  from 
them,  to  pafs  fuch  a  law  as  this.  If  there  is  error, 
it  is  our  duty  to  correct  it  ;  and  the  truth  was,  no 
law  was  ever  more  execrated  by  the  public. 
.    N  ' 


92 

Let  it  not  be  fald,  poflpone  the  repeal  till  the 
next  feflion.  No.  Let  us  reflore  thofe  gentlemen 
to  private  life,  who  have  accepted  appointments  un- 
4er  this  law.  This  will  be  doing  them  greater  juf- 
tice,  than  by  keeping  them  in  office  another  year, 
till  the  profeflional  bufinefs,  which  once  attached  to 
them,  is  £;one  into  other  channels. 

[Mr.  Mason  went  into  an  examination  of  the 
number  of  fuits  depending  at  the  time  the  law  was 
paiTed,  and  particularly  the  number  brought  within 
the  twelve  months  preceding  its  paffage,  from  the 
fewncfs  of  which,  and  their  being  in  a  flate  of  dimi- 
nution, rather  than  increafe,  he  inferred  the  inutih- 
ty  of  the  additional  judges. 3 

He  continued  :  If,  on  this  review,  wc  find  the 
number  of  fuits  decreafing,  inftead  of  increafing  ; 
if  the  courts,  then  eflablifhed,  were  found  competent 
to  the  prompt  and  faithful  difcharge  of  all  the  duties 
devolved  upon  them,  the  law  was  unnecefTary  j  and 
if  neceffary,  the  additional  expenfe  incurred  by  it  was 
unnecefTary,  andall  unneceffary  expenfe  fliouldbefav- 
ed.  It  is  true,  that  50,000  dollars,  divided  among  the 
people  of  the  United  States,  amounted  to  but  one  cent 
a  man  ;  but  the  principle  was  flill  the  fame.  It  has 
been  very  fafliionable,  of  late,  tojuftify  every  un- 
necefTary expenfe  by  Hating  each  item  by  itfelf,  and 
dividing  it  among  the  whole  people.  In  this  way 
every  expenfe  is  held  forth  as  of  little  confequence. 
Gentlemen  fay,  in  this  cafe,  it  is  only  one  cent  a 
man.  In  the  cafe  of  the  maufoleum,  two  hundred 
tlioufand  dollars  came  to  only  four  cents  a  man  I  In 


9S 

the  direft  tax,  it  is  only  forty  cents !  They  talk  of 
our  army,  it  only  comes  to  a  few  cents  for  each 
perfon,  who  may  fell  as  many  cabbages  to  the  fol- 
diers  themfelves,  as  to  pay  it !  So  in  a  navy.  In 
this  way  are  the  moil  extravagant  expenfes  whittled 
down  to  a  mere  fraction.  But  this  kind  of  federal 
arithmetic  I  can  never  accede  to.  It  may  fuit  an 
expenfive  government,  but  it  is  an  impolition  upon 
the  people. 

-  It  has  been  urged,  with  fome  force,  by  the  gen- 
tlenfen  from  New- York  and  Connefticut,  that  the 
fiilall  number  of  fuits  is  an  evidence  of  the  efficacy 
and  ability  of  our  courts  of  juftice.  I  am  willing  to 
admit  the  force  of  this  remark  ;  but  I  mufl  apply 
it  very  differently  from  thofe  gentlemen.  I  mud  ap- 
ply if  to  the  flate  of  the  dockets,  when  this  law 
paffed  ;  and,  from  their  being  very  few  at  the  time, 
I  muft  infer,  tliat  the  fyflem  exifling  then  was  an 
excellent  one,  as  it  wielded  the  power  of  the  law 
fo  effeftually,  that  there  was  but  little  neceffity  for 
enforcing  the  law  againft  delinquents. 

From  the  remarks,  made  by  the  gentleman 
from  Connediicut,  it  might  be  inferred,  that  we 
were  about  to  deflroy  all  our  courts,  and  that  we 
were,  in  future,  to  have  no  courts.  Is  this  the 
cafe  ?  Are  we  contending  for  breaking  down  the 
whole  judiciary  edablifliment  ?  On  the  contrary, 
we  barely  fay,  the  courts  you  had,  before  the  paf- 
fage  of  this  law,  were  fufficicnt  ;  return,  therefore, 
to  them.     This  law,  which  we  wifh  repealed,  im- 


94 


parts  no  new  authorities  to  your  judges  ;  it  clothes 
thcin  with  no  ^dditioual  terrors ;  it  adds  not  to 
their  axes,  or  iucreafes  not  the  number  of  their  rods. 
It  ;onIy  enlarges  their  number,  which  was  before 
large  enough. 

The  gentleman  from  New-York  has  amufed 
himfelf  with  a  great  deal  of  handfome  rhetoric.  But, 
I  apprehend,  without  bearing  much  upon  the  quef- 
tion.  There  is  one  idea,  however,  which  hehasfeized 
with  extacy,  the  idea  of  a  great  ftate  kneeling  at 
the  altar  of  federal  power  ;  and  he  deplores  that 
this  fpe6lacle,  the  moil  fublime  that  his  imagination 
can  conceive,  is  vanifhed  forever.     But,  if  he  will 
confult  thofe   ftores  of  hiflory  with  which  he  fo 
often  amufes  and  in{lru(n:s  his  audience,  he  will  find 
flill  more  fplendid  humiliations.     He  will  find  the 
proud  monarchs  of  the  eaft,  furrounded  with  all 
the  decorations  of  royalty,  dragged  at  the  chariot- 
wheel  of  the  conqueror.     In  more  modern  times, 
he  will  behold  a  king  of  England,  and  of  France, 
one  holding  the  flirrup,  and  the  other  the  bridle, 
while  the  Pope  mounted  his  horfe.     If  not  content- 
ed with  the  contemplation  of  thefe  illuftrious  degra- 
dations, he  may  relbrt  to  facred  writ,  to  which  he 
fo  often  appeals^;   and,  in  the  very  book  of  judges, 
he  will  behold  a  famous  king  of  Jerufalem,  fur- 
rounded  by  three-fcore  and   ten  dependent  kings, 
picking  up  the  crumbs  from  under  his  table ;   and 
what  made  the  humiliation  more  charming,  all  thefe 
kings  had  their  thumbs  and  great  toes  cut  ofi". 


95 

But,  if  tlie  gentleman  from  New- York  wifhes 
to  be  gratified  with  a  more  modern  idea  of  fove- 
reign  degradation,  I  would  refer  him  to  the  memor- 
able threat  of  an  individual,  a  servant  of  the  people^ 
to  humble  a  whole  ftate,  a  great  ftate  too,  in  dust 
and  ashes.     A  ftate  upon   her   knees,  before  fix 
venerable  judges,  decorated  in  party-coloured  robes, 
as  ours  formerly  were,   or  arrayed  in  more  folemn 
black,  fuch  as  that  they  have  lately  aflumed,  hop- 
ing, though  a  ftate,  that  it  might  have  fome  chance 
for  juftice,  exhibits  a  fpe^lacle  of  humble  and  de- 
graded fovereignty  far  ftiort  of  the  dreadful  denun- 
ciation, to  which  I  allude  !     If  the  gentleman  feels, 
as  I  know  many  do,  rapture  at  the  idea  of  a  ftate 
being  humiliated  and  tumbled  into  the  duft,  I  envy 
him  not  his  feelings.     At  fuch  a  thought,  I  acknow- 
ledge, I  feel  humbled.     If  the  degradation  were- 
confined  to  kings  and  tyrants,  to  ufurpers,  who  had 
deftroyed  the  liberties  of  nations,  i  ftiould  not  feel 
much  commiferation  ;  but  when  applied  to  govern-  . 
ments,  inftituted  by  the  people  for  the  prote<5l:ion  of 
their  liberties,   and   adminiftered  only  to   promote 
their  happinefs,  I  feel  indignant  at  the  idea  of  de- 
graded fovereignty.     I  fliould  feel  the  fame  intereft 
for  any  ftate,  large  or  fmail,  whether  it  were  the 
httle  ftate  of  Delaware  herfelf,  or  the  ftill  more  in- 
fignificant  republic  of  St.  Marino. 

Mr.  Stone,  of  North  Carolina.  The  import- 
ance of  the  prefent  queftion,  might,  I  prefiime, 
juftify   any  member   in  delivering  his   fentimcnts 


96 

MTithout  apology.  But,  from  the  able  manner  in 
which  the  fubje£l  has  already  been  difcuflcd,  Ifliould 
have  been  induced  to  adhere  to  my  ufual  courfe, 
Cncc  I  have  been  a  member  of  this  body,  and  leav- 
ing its  elucidation  to  others  of  greater  experience 
and  more  talents,  have  been  contented  with  afilent 
vote.  As,  however,  the  ftate,  whofe  fervant  I  am^ 
and  whofe  faithful  fervant  I  wifh  at  all  times  to  be 
found,  has  inftrufted  her  members  on  this  fubjeft^ 
I  will  endeavour,  in  the  plain  way  of  which  alone  I 
am  capable,  to  aiCgn  the  reafons  for  my  vote. 
And,  in  doing  this,  I  rather  wiih  than  hope,  that 
I  may  ftate  any  thing  worthy  the  confideration  of 
this  enlightened  affcmbly. 

The  argument  upon  this  qucflion,  has  naturally 
divided  into  two  parts,  the  one  of  expediency,  the 
other  of  conflitutionality.  If  the  repeal  of  this 
law  fliall  be  deemed  expedient,  the  Senate  will, 
doubtlefs,  confider  it  their  duty  to  repeal  it,  if  no 
conllitutional  obje<ftion  oppofcs  it ;  but  if  it  (hall  be 
deemed  unconflituticnal  to  repeal  it,  then  no  conii- 
derations  of  expediency  can  ftaud  in  the  way  of 
that  folcmn  inllruraeni,  we  are  all  fworn  to  fup- 
port. 

Before  entering  into  an  examination  of  the  ex- 
pediency of  the  repeal,  it  may  be  proper  to  remark, 
that  gentlemen,  who  have  fpoken  againfl  the  repeal, 
whofe  talents  and  eloquence  I  highly  admire,  have 
not  correctly  ilatcd  the  queflion.  The  true  quef- 
tion  is,  not  whether  we  fliall  deprive  the  people  of 


91 

the  United  States  of  all  their  courts  of  jufticc ;  but 
whether  we  fliall  reflore  to  them  their  former  courts  ? 
3hall  we,  or  (liall  we  not,  continue  an  experiment 
made,  or  attempted  to  be  made,  I  will  not  fay,  im- 
properly,  becaufe  my  refpeft  for  this  body,  and  for 
my  country,  forbid  the  imputation  ;  but  I  will  fay, 
that  the  length  of  time  we  remained  without  thi$ 
fyftem,  and  the  repeated  ineffc£tual  attempts  made 
to  eftablifli  it,  prefent  ftrong  reafons  for  inferring, 
that  there  are  not  thofc  great  apparent  reafons  in 
favour  of  it,  that  have  been  Hated.  A  fyftem, 
fomewhat  fimilar  to  the  prefent,  had  been  rejecled 
by  the  legifl^ture,  becaufe  they  preferred  the  for- 
mer fyftem.  Another  evidence,  to  the  fame  pur-» 
port,  is,  that  during  the  laft  feftlon,  when  the  fuhr» 
je6:  was  again  revived,  and  the  prefent  plan  adopts 
cd,  an  amendment  was  offered,  to  amend  by  exn 
tending  and  enlarging  the  former  eftablifliraent. 

[Here  Mr.  Stone  read  the  amendment  prop>o- 
fed,  which  augmented  the  number  of  judges  of  the 
fupreme  court,  and  afligned  their  circuits.] 

This  amendment  was  rejected,  and,  from  the 
vote  entered  on  the  journal  of  that  day,  it  appears, 
that  the  difference;  of  votes  againft  the  amendment, 
was  formed  of  tbofe  gentlemen  who  were  nominated 
to  appointments  made  vacant  by  the  promotions 
under  the  new  law.  I  do  not  ftate  this  circumftance 
es  a?  evidence  that  thefe  gentlemen  were  influen- 
ced by  improper  motives ;  but  to  fhew,  that  the 
manner  in  which  the  new  fyftem  was  formed,  was. 


98 

not  calculated  to  eflablifli,  in  the  public  mind,  a 
decided  preference  of  it  over  the  old  fyftem. 

Having  made  thefe  remarks  on  the  great  deli- 
beration faid  to  have  been  manifefled  in  the  adoption 
of  this  plan,  I  hope  I  may  be  permitted  to  exprefs 
my  pcrfecl:  coincidence  with  the  gentleman  from 
Connefticut,  that  courts  are  neceffary  for  the  admi- 
niftration  of  juflice,  and  that,  without  them,  our 
laws  would  be  a  dead  letter. 

But  it  appears  to  me  eflential  to  the  due  admi- 
niftration  of  juflice,  that  thofe  who  prefide  in  our 
courts  fhould  be  well  acquainted  wich  the  laws  which 
are  to  guide  their  decifions.  And,  I  apprehend, 
that  no  way  is  fo  much  calculated  to  impart  this 
knowledge,  as  a  pra(ftical  acquaintance  with  them, 
by  attending  courts  in  the  fevcral  ftates,  and  hear- 
ing gentlemen  who  are  particularly  acquainted  with 
them,  explain  and  difcufs  them.  It  is,  therefore, 
abfolutely  neceffary,  in  my  mind,  that  the  judges  of 
the  fupreme  court,  whofe  power  controls  all  the 
other  tribunals,  and  on  whofe  decifions  reft  the 
property,  the  reputation,  the  liberty,  and  the  lives 
of  our  citizens,  Ihould,  by  riding  the  circuits,  ren- 
der themfelves  praftically  acquainted  with  their  du- 
ties. It  is  well  known,  that  the  knowledge  of  the 
laws  of  a  ftate  is  not  to  be  fuddenly  acquired,  and  it 
is  rcafonable  toconclude,  that  that  knowledge  is  mod 
correctly  pofftffed  by  men  whofe  whole  lives  have 
been  devoted  to  the  acquifion.  It  is  alfo  perfe<5lly 
well  known,  that  the  knowledge  of  the  modes  and 


99 

and  principles  of  praflice  in  the  different  dates,  dli 
of  any  ftate,  is  mofl  eiieftually  to  be  acquired  in 
courts,  where  gentlemen  of  ikill  and  experience  ap>- 
ply  thofe  principles  to  ufe  upon  cxifting  points. 

This  defeat,  then,  of  the  prefent  plan,  is,  in  my 
opinion,  fo  radical,  that,  of  itfelf,  it  would  decide, 
with  me,  the  queflion  of  expediency. 

With  regard  to  the  expenfe  of  this  new  fyftem, 
I  will  fay,  that  it  weighs  as  much  as  it  is  worth. 
The  fmgle  confideration  of  an  expenditure  of  thirty 
thoufand  dollars,  may  not  be  deemed  of  much  im- 
portance, when  weighed  with  the  benefits  derived 
from  an  adminiflration  of  juflice  over  this  extenfive 
country.  If  this  great  obje£l  can  be  better  efTefted 
with  the  additional  expenfe,  then  it  is  proper  to 
confider  whether  the  amelioration  is  worth  the 
price  ;  but  if  it  is  not  better  effecfted,  it  furely  can- 
oot  be  the  wifli  of  any  gentleman  to  incur  a  ufelefs 
expenfe.  If,  when  this  law  palTed,  the  bufinefs,  to 
the  tranl^iftion  of  which  the  old  courts  were  fully 
competent,  was  leffening,  then,  furely,  there  was  no 
occafion  for  additional  tribunals. 

The  more  important  confideration  involves  the 
conflitutional  queflion  :  Can  we,  according  to  that 
facred  inflrument,  repeal  this  law,  and  deflroy  the 
offices  created  by  it  ?  If  we  cannot,  I  hope  the 
Senate  will  reject  the  propofitlon  on  your  table. 
But  if  we  can,  as,  on  examination  I  think  we  may, 
I  truft  tile  relblution  will  be  adopted. 

O 


100 

The  gentleman  from  Kentucky,  who  introduced 
this  fubjcft,  has  fo  fully  and  forcibly  dated  that  part 
of  the  argument,  which  eftablifhes  that  the  office 
of  judge,  being  declared,  by  the  conftitution,  to  be 
during  good  behaviour,  mufl  evidently  apply  to  ex- 
ifting  offices,  and  not  to  contefl  the  power  of  the 
legiflature  in  doing  away  offices,  that  I  ftiall  not 
touch  it. 

I  have  taken  a  view  of  the  conftitution,  which, 
though  new  in  this  argument,  appears,  to  me,  to 
be  corre£l  and  conclufive.  The  fourth  feftion,  of 
the  fecond  article  of  the  conflitution,  declares, 
*'  That  the  Prefident,  the  Vice-Prefident,  and  all  civil 
officers  of  the  United  States,  fhall  be  removed 
from  office,  on  impeachment  for,  and  convidion  of, 
treafon,  bribery,  or  other  high  crimes  and  mifdc- 
meanors." 

This  fe^lion,  being  added  to  the  article  eftablifli- 
ing  the  executive  power,  evidently  operates  as  a  re- 
ftriftion  and  curb  to  that  power  ;  to  prevent  the 
Prefident,  Vice-Prefident,  or  any  officer  in  the  c.p- 
point  of  the  Prefident,  from  remaining  in  office, 
when,  in  the  opinion  of  the  legiflature,  the  public 
good  requires  them  to  be  difplaced.  The  pra<flical 
conflru£tion  put  upon  this  article,  in  connexion 
with  other  parts  of  the  conflitution,  is,  that  all  of- 
ficers, in  the  appointment  of  the  Prefident,  may  be 
removed  at  his  will ;  but  that  thofe  officers,  toge- 
ther with  himfelf,  and  Vice-Prefident,  s/ja/l  be  re- 
moved, upou  impeachment  and  convidion,  by  the 


101 

Icgiflaturc.  No  part  of  the  conftitution  exprefsly 
gives  the  power  of  removal  to  the  Prefident ;  but 
a  conftruftion  has  been  adopted  and  praftifecj  upon 
from  neceflity,  giving  him  that  power  in  all  cafes 
in  which  he  is  not  exprefsly  reflrained  from  the  ex- 
ercife  of  it.  The  judges  afford  an  inftance,  in 
which  he  is  exprefsly  reflrained  from  removal.  It 
being  declared,  by  the  firfl  feftion  of  the  third  arti- 
cle of  the  conftitution,  that  the  judges,  both  of  the 
fupreme  and  inferior  courts,  fhall  hold  their  ofHces 
during  good  behaviour.  They  doubtlefs  (hall,  (as 
againfl  the  Prefident's  power  to  retain  them  in  of- 
fice), in  common  with  other  officers  of  his  appoint- 
ment, be  removed  from  office  by  impeachment  and 
conviftion  ;  but  it  does  not  follow,  that  they  may 
not  be  removed  by  other  means.  They"  (hall  hold 
their  offices  during  good  behaviour,  and  they  fhall 
be  removed  from  office  upon  impeachment  and  con- 
viction of  treafon,  bribery,  and  other  high  crimes 
and  mifdemeanors. 

To  what  fource,  then,  fliall  we  refort,  for  a 
knowledge  of  what  conftitutes  this  thing,  called  mif- 
behaviour  in  office  ?  The  conflitution,  furely,  did 
not  intend,  that  a  circumftance  fo  important  as  the 
tenure  by  which  the  judges  hold  their  offices,  fhould 
be  incapable  of  being  afcertayied.  Their  misbeha^ 
njtour  certainly  is  not  an  impeachable  offence  ;  ftill 
it  is  the  ground  upon  which  the  judges  are  to  be  re- 
moved from  office.  The  procefs  of  impeachment, 
therefore,  cannot  be  the  only  one  by  which  the 


102 

judges  may  be  removed  from  office,  under,  and  ac- 
cording to  the  conflitution.  I  take  it,  therefore,  to 
be  a  thing  undeniable,  that  there  rcfidcs  fomewhere 
in  the  government,  a  power  to  declare  what  fhall 
amount  to  mifbehaviour  in  office,  by  the  judges, 
and  to  remove  them  from  office  for  the  fame,  "with- 
out impeachment.  The  conftitution  does  not  pro- 
hibit their  removal  by  the  legiilature,  who  have 
the  power  to  make  all  laws  neceifary  and  proper  for 
carrying  into  execution  the  powers  vefled  by  the 
conflitution  in  the  government  of  the  United  States. 
But,  fays  the  gentleman  from  New- York,  the  judges 
are  officers,  infiituted  by  the  conftitution,  to  fave 
the  people  from  their  greatefl  enemies,  theraiclves  j 
and,  therefore,  they  fliould  be  entirely  independent 
of,  and  beyond  the  control  of  the  legiilature.  If 
fuch  was  the  defign  of  thofe  wife  men  who  framed 
and  adopted  the  conftitution,  can  it  be  prefumed, 
they  would  have  provided  fo  inefl'eflual  a  barrier  as 
thefe  judges  can  readily  be  (hewn  to  be  ?  It  is  al' 
lowed,  on  all  hands,  the  Icglflature  may  modify  the 
courts  ;  they  may  add  judges,  they  may  fix  the 
times  at  which  the  courts  fliall  fit,  &c.  Suppofe  the 
Icgiflature  to  have  interefts  dirtin<ft  from  the  people, 
and  the  judges  to  ftand  in  the  way  of  executing 
any  favourite  meafure — Can  any  thing  be  more  eafy 
than  for  the  legiflature  to  declare,  that  the  courts, 
inftead  of  being  held  femi-annually,  or  oftener,  fliall 
be  held  only  once  in  fix,  eight,  ten,  or  twenty 
years  j  or,  in  order  fo  free  themfclvcs  from  the  op- 


105 

pofition  of  the  prefent  fupremc  court,  to  declare, 
that  court  fliall  hereafter  be  held  by  thirteen  judg- 
es. An  underdanding  between  the  Prefident  and 
the  Senate,  would  make  it  prafticable,  to  fill  the 
Hew  offices  with  men  of  different  views  and  opinions 
from  thofe  now  in  office.  And  what,  in  either 
cafe,  would  become  of  this  boafted  prote^ion  of 
the  people,  againft  ihemfelves.  I  cannot  conceive 
the  conftitution  intended  fo  feeble  a  barrier ;  a  bar- 
rier fo  eafily  evaded. 

What  danger  is  there  to  the  people  from  the 
legiflature  which  the  courts  can  control  ?  The 
means  of  oppreffion  neareft  at  hand  to  the  legifla- 
ture, and  which  afford  the  flrongefl  temptation  to 
their  ufe,  are,  the  raifmg  extravagant  and  unnecef- 
fary  fums  of  money,  and  the  embodying  large  and 
ufelefs  armies.  Can  the  courts  oppofe  effis£lual 
checks  to  thefe  powers  ?  1  prefurae  not.  The 
confl-itution  permits  their  exercife  to  any  extent 
within  the  difcretion  of  the  legiflature. 

The  objefts  of  courts  of  law,  as  I  underfland 
them,  are,  to  fettle  queftions  of  right  between  fuit- 
ors  ;  to  enforce  obedience  to  the  laws,  and  to  pro- 
teft  the  citizens  againft  the  oppreffive  ufe  of  power 
in  the  executive  offices.  Not  t©  prote(fi  them  againft 
the  legiflature  ;  for  that,  I  think,  I  have  fliewn  to 
be  impoffible,  with  the  powers  which  the  legiflature 
may  fafely  ufe  and  exercife  j  and  becaufe  the  peo- 
ple have  retained,  in  their  own  hands,  the  power 
of  controlling  and  directing  the  legiflature,  by  their 


104 

immediate  and  mediate  ele£lions  of  Prcfidcnt,  Se- 
nate, and  Houfc  of  Reprefentatives. 

It  is  not  alone  the  fixteen  rank  and  file  which 
the  genrlcman  from  New- York  has  fo  ludicroufly 
depifted,  that  I  apprehend  immediate  danger  from, 
but  it  is  the  principle,  which  converts  the  office  of 
judge  into  an  hofpital  of  incurables,  and  declares, 
that  an  expiring  faftion,  after  having  loft  the  pub- 
lic confidence,  may  add  to  thofe  fixteen,  until  they 
become  i6,oo,  or  16,000;  and  that  the  reftored 
good  fenfe  of  the  Icgiflature,  the  whole  government 
and  conditution,  retains  no  means  of  cafting  them 
off,  but  by  deftroying  ilfclf,  and  reforting  to  revolu- 
tionary principles.  The  legiflature  may  repeal  un- 
neceffary  taxes,  may  difband  ufclefs  and  cxpenfive 
armies,  may  declare  they  will  no  longer  be  bound 
by  thcftipulations  of  an  opprefTive  treaty  ;  and,  if 
war  fliould  follow,  the  conftitution  is  flill  fafe.  But 
if  the  conflruftion,  which  gentlemen  contend  for, 
be  correal,  a  band  of  drones,  to  any  amount,  in 
number,  under  the  denomination  of  judges,  may 
prey  upon  the  fubftance  of  the  people,  and  the  go- 
vernment retains  not  the  power  to  remove  them,  but 
by  deflroying  the  conflitution. 

I  befeech  this  enlightened  affembly  to  paufe,  be- 
fore they  adopt  a  conftruclion  capable  of  producing 
fo  great  mifchief,  and  fo  ineire£tual  to  the  ends  pro- 
pofed. 

The  queftion  is  not  now,  as  it  would  feem  from 
the  arguments  of  gentlemen,  they  undcrftand  it  to 


105 

be ;  whether  we  fliall  abolifti  offices  without  com- 
penfating  the  officers  for  the  facrifices  they  may, 
have  made.  If  a  propofal  to  compenfate  them 
fliall  be  brought  forward,  the  legiflature  will  furely 
do  what  honour  and  juflice  (hall  require. 

If  I  poflefTed  equal  powers  of  fpeech  with  the 
gentleman  from  Connecticut,  I  might  be  tempted  to 
make  as  impreffive  an  addrefs  to  the  feelings  of  the 
Senate.  Sure  I  am,  I  feel  as  deep  an  interefl:  in, 
and  foHcitude  for,  the  conftitution,  as  that  gentle- 
man. I  view  it,  with  him,  as  the  bond  of  our 
union,  and  the  foundation  of  our  fafety.  But  it 
mud  be  fupported  on  reafonablc  and  practical 
grounds.  My  underftanding  is  incapable  of  feeing 
how  the  abfurdities  and  evils  of  the  conflruftion, 
contended  for,  can  be  avoided.  I  hope,  therefore^ 
tliat  the  power  of  the  legiflature,  to  put  down,  as 
well  as  to  build  up,  courts  of  juftice,  as  the  public 
good  may  require,  will  be  eftabliihed. 

Not  having  accuftomed  myfelf  to  deliver  my  fen- 
timents  in  this  or  the  other  branch  of  the  legiflature, 
I  may  not  have  comprifed  them  in  fo  fhort  a  compafb, 
nor  in  fuch  orderly  fliape,  as  would  be  proper  in  fub- 
mitting  them  to  this  enlightened  afl'embly.  If,  how- 
ever, I  have  fucceeded  in  dating  intelligibly  the 
grounds  of  my  conviftion,  I  am  fatisfied.  If  my  re- 
marks have  contributed  to  elucidate  the  fubjcft  to 
others,  I  fliall  rejoice  j  but  if  failing  in  this,  they  alfo 
are  mixed  with  error,  1  trufl  gentlemen  will  fet  them 


106 

After  Mr.  Stone  concluded,  the  Senate  ad- 
journed till  the  next  day  ( Thurfday  the  fourteenth) 
when  Mr.  Olcott,  of  New-Hamplliirc,  opened 
the  debate. 

He  faid,  this  fubje£t  was  of  the  mofl  important 
kind,  and  though  many  able  arguments  had  been  al- 
ready offered,  he  could  not  pafs  it  over  with  a  iilent 
vote. 

It  has  been  fuggefted  that  the  act,  now  propo- 
fed  to  be  repealed,  came  in  on  the  influx  of  paffion, 
and  that  the  influx  of  reafon  fliould  fweep  it  away. 
He  did  not  know  that  this  was  the  cafe.  Some 
gentlemen  contend  that  it  was  adopted  with  great 
deliberation. 

He  thought  the  reafons  for  a  repeal  of  this  law 
infufiicient.  It  is  not  faid,  that  if  the  conflitution 
vefts  a  right  to  ofEce  in  the  judges,  that  we  can 
affeft  them.  He  thought  the  conflitution  did  veft 
the  right,  and  he  held  it  to  be  facred. 

The  provlfions  of  the  conflitution  appeared  to 
him  fo  plain,  that  they  fcarcely  admitted  of  iiluflra- 
tion.     He  who  undertakes  to  explain  the  text  mud* 
find  more  explicit  terms  than  thofe  contained  in  it.. 
He  could  not  find  any. 

After  dwelling  upon  the  different  provifions  of 
the  conflitution,  Mr.  Olcott  went  upon  the  quef- 
tion  of  expediency,  at  fome  length,  and  concluded 
that  a  repeal  was  as  inexpedient  as  unconflitutional. 

Mr.  Cocke,  of  Tenneffec,  followed  Mr.  Ol- 
cott.    He  faid,  he  was  forry  gentlemen  attempt- 


107 

cd  to  make  quack  doctors  of  them,  by  faying  wc 
may  give  a  wound,  but  cannot  heal  it.  He  wiftied 
the  Senate  to  inquire  whether  the  law  now  propo- 
fed  to  be  repealed,  was  conftitutional  or  not.  If  it 
was  not,  we  fliould  aft  like  honeft  men,  acknow- 
ledge tliat  we  have  violated  the  conftitution,  and 
rcftore  it  to  its  purity  by  repealing  the  law.  Let 
us  recur  to  the  Journals  of  1799,  and  fee  what  was 
the  underftanding  of  tKefe  champions  of  our  liber- 
ties, and  whether  they  have  not  fince  changed.  The 
Journals  would  prove  that  the  judges  were  to  mix 
with  the  legiflature,  were  to  be  locked  up  in  a  clo- 
fet,  and  to  declare,  who  was  to  be  our  executive  ma- 
giftrate* 

f  Mr.  Cocke,  went  into  an  examination  of  the 
arguments  on  the  conftitutional  point.]] 

We  have  been  told,  that  the  nation  is  to  look 
mp  to  thefe  immaculate  judges,  to  protecl  their 
liberties,  to  protect  the  people  againfl  themfelves. 
This  was  novel,  and  what  refult  did  it  lead  to  ?  He 
fhuddcred  to  think  of  it.  Were  there  none  of  thefe 
judges  ready  to  plunge  their  fwords  in  the  American 
heart ;  He  did  not  think  it  proper  to  be  alarmed, 
by  the  terrors  held  out.  He  wlllied  to  know  no 
man  ;  to  take  things  as  they  are.  But  if  gentle- 
men will  attack,  they  mull  expeft:  a  reply. 

Mr.  CocKZ,  then  dilated  upon  the  feveral  points 
of  the  difculfion,  and  concluded  with  the  expreilion 
of  the  hope  thiit  the  legiflature  would  repeal  the  law, 
and  that  they  would  not  give  way  to  the  ideas  of 

P 


108 

gentlemen,  that  the  government,   was  made  for  a 

chofcn  few,  for  the  judges,  to  whom  we  are  to  look 

up  for  every  thing. 

After  Mr.  Cocke  fat  down,  there  was  a  paufe, 

and  the  quellion  was   called  for.     When  it   was 
about  to  be  put,  Mr.  Morris  again  rofe  : 

Mr.  Prefident,  1  had  foftercd  the  hope  that 
fome  gentleman  who  thinks  with  me,  would  have 
taken  upon  himfelf  the  talk  of  replying  to  the  ob- 
■  fervations  made  yefterday,  and  this  morning,  in  fa- 
vour of  the  motion  on  your  table.  But  fmce  no 
gentleman  has  gone  fo  fully  into  the  fubjeft  as  it 
fcems  to  require,  I  am  compelled  to  requeft  your 
attention. 

We  were  told  yefterday  by  the  lionourablc  mem- 
ber from  Virginia,  that  our  objeftions  were  calcu- 
lated for  the  bye-ftanders,  and  made  with  a  view  to 
produce  effeft  upon  the  people  at  large.  I  know 
not  for  whom  this  charge  is  intended.  I  certainly 
recolleft  no  fuch  obfervations.  As  I  was  perfonally 
charged  with  making  a  play  upon  words,  it  may 
have  been  intended  for  me.  But  furely,  fir,  it  will 
be  recollected  that  I  declined  that  paltry  game,  and 
declared  that  1  confidcred  the  verbal  criticifm  which 
had  been  relied  on,  as  irrelevant.  U I  can  recoiled 
what  I  faid,  from  recol!c£ling  well  what  I  thought, 
and  meant  to  fay,  fare  I  am,  that  i  uttered  nothing 
in  the  ftyle  of  r.i)  iirjjcal  to  Jc  people.  I  hope  no 
member  of  this  houfe  .  fo  poor  a  fenfe  of  its 
dignity,  as  to  make  fucli  an  appeal.  As  to  myftlf,  it 


109 

is  now  near  thirty  years  fince  I  was  called  into  pub- 
lic office.  During  that  period,  I  have  frequently 
been  the  fervant  of  the  people,  always  their  friend  ; 
but  at  no  one  moment  of  my  life,  their  flatterer,  and 
God  forbid  that  I  ever  lliould  be.  When  the  ho- 
nourable gentleman  confiders  the  courfe  we  have 
taken,  he  muft  fee  jthat  the  obfervation  he  has  thus 
pointed,  can  light  on  no  objeft.  I  truft,  that  it  did 
not  flow  from  a  confcioufnefs  of  his  own  intentions. 
He,  I  hope,  had  no  view  of  this  fort.  If  he  had, 
he  was  much,  very  much  miftaken.  Had  he  looked 
round  upon  thofe,  who  honour  us  with  their  atten- 
dance, he  would  have  feen  that  the  fplendid  flafhes 
of  his  wit,  excited  no  approbatory  fmile,  The  coun- 
tenances of  thofe  by  whom  we  were  furrounded, 
prefented  a  different  fpeftacle.  They  were  impref- 
fed  with  the  dignity  of  this  houfe  ;  they  perceived 
in  it  the  dignity  of  the  American  people,  and 
felt  with  high  and  manly  fentiment,  their  own 
participation. 

We  have  been  told,  fir,  by  the  honourable  gen- 
tleman from  Virginia,  that  there  is  no  independent 
part  of  this  government.  That  in  popular  govern- 
ments, the  force  of  every  department,  as  well  as  the 
government  itfelf,  muft  depend  upon  popular  opi- 
nion.: And  the  honourable  member  from  North- 
Carolina,  has  informed  us,  that  there  is  no  check 
for  the  overbearing  powers  of  the  legiflature,  but 
public  opinion  ;  and  he  has  been  pleafed  to  notice 
a  fentiment  I  had  uttered.  A  fentiment  which  not  only 


110 

fell  from  my  lips,  but  which  flowed  from  my  heart. 
It  has,  however,  been  jni sunders  food,  and  misapplied. 
After  reminding  the  houfe  of  the  dangers  to  whith 
popular  governments  are  expoftd,  from  the  influ- 
ence of  defigning  demagogues  upon  popular  paflTion,! 
took  the  hberty  to  fay,  that  wc,  we  the  Senate  of  the 
United  States,  areaflfembled  here,  to  favc  the  peo- 
ple,   from  their    mofl  dangerous  enemy,   to   fave 
them  from  themfelves ;  to  guard  them  againfl:  the 
baneful  eSe6ls  of  their  own  precipitation,  their  paf- 
fiou,  their  mifguided  zeal.     *Tis  for  thefe  purpofes 
that  all  our  confliitutional  checks  are  devifed.     If 
this  be  not  the  language  of  the  conftitution,  the 
conllitution  is  all  nonfenfe.     For  why  are  the  fcna- 
tors  chofen  by  communities,  and  reprefeutatives  di- 
reftly  by  the  people  ?     Why  are  the  one  chofen  for 
a  longer  term  than  the  other  ?     Why  give   one 
branch  of  the  legiflature  a  negative  upon  the  afts  of 
the  other  ?     Why  give  the  Prefldent  a  right  to  ar- 
refl  the  proceedings  of  both,  till  two-thirds  of  each 
ihould  concur  ?     Why  all  thefe  multiplied  precau- 
tions, unlefs  to  check  and  control  that  impetuous 
fpirit,  that  headlong  torrent  of  opinion,  which  has 
fwept  away  every  popular  government  that  ever 
exifted  ? 

With  mofl:  rcfpeftful  attention,  I  heard  the  de- 
claration of  the  gentleman  from  Virginia,  of  his  own 
feniiment.  "  Whatever,"  faid  he,  "  may  be  my 
opinion  of  the  conflitution,  I  hold  myfclf  bound  to 
rcfpeft  it."    He  difdaincd,  fir,  to  profcfs  an  affcc- 


Ill 

tlon  he  did  not  feel,  and  I  accept  his  candour  as  a 
pledge  for  the  performance  of  his  duty.     But  he 
will  admit  this  necelTary  inference  from  that  frank 
confeffion,  that  although  he  will  ftruggle  (againft 
his  inclination)  to  fupport  the  conftitution,  even  to 
the  lad  moment,  yet,  when,  in  fpite  of  all  his  efforts^, 
it  fhall  fall,  he  will  rejoice  in  its  deftruftion.     Far 
different  are  my  feelings.     It  is  pofliblc,  that  we  are 
both  prejudiced ;  and  that  in  taking  the  ground  on 
which  we  refpeftively  ftand,  our  judgments  are  in- 
fluenced by  the  fentiments  which  glow  in  our  hearts. 
I,  fir,  wifli  to  fupport  this  conftitution,  becaufe  I 
love  it.     And  I  love  it,  becaufe  I  confider  it  as  the 
bond  of  our  union  ;  becaufe,  in  my  foul,  I  believe, 
that  on  it  depends  our  harmony,  and  our  peace  ; 
that  without  it,  we  fliould  foon  be  plunged  in  all  the 
horrors  of  civil  war  ;   that  this   country  would  be 
deluged  with  the  blood  of  its  inhabitants ;    and  a 
brother's  hand,  be  raifed  againft  the  bofom  of  a 
brother. 

After  thefe  preliminary  remarks,  I  hope  I  fhall 
be  indulged,  while  I  confider  the  fubie*^^,  in  refer- 
ence to  the  two  points  which  have  been  taken, 
the  expediency  and  the  constitutionality  of  the  re- 
peal. 

In  conlldering  the  expediency,  I  hope  I  fhall  ht 
pardoned,  for  afking  your  attention  to  fome  parts 
of  the  conftitution,  which  have  not  yet  been  dwelt 
upon,  and  which  tend  to  elucidate  this  part  of  our 
inquiry.     I  agree  fully  with  the  gentleman,  that 


112 


every  feftion,  every  fentence,  21^  every  word  of 
the  conftitution,  ought  to  be  deliberately  weighed 
and  examined  ;    nay,  I  am  content  to  go  along  with 
him,  and  give  its  due  value   and  importance,  to 
every  flop,  and  comma.      In  the  be  ginning  wt  rmd 
a  declaration   of  the   motives  which  induced   tae 
American  people  to  bind  thcmfclves  by  this  cora- 
paft.     And  in  the  fore-ground  of  that  declaration, 
we  find  thefe  obje£ls  fpecified  ;   to  form  a  more  per- 
fect union,  to  establish  justice^  and  to  insure  domestic 
tranquillity.     But  how  are  thefe  objcfts  efFefted  ? 
The  people  intended  to  establish  justice.     What 
provifion  have  they  made  to  fulfil  tha't  intention  ? 
After  pointing  out  the  courts  which  fhould  be  eflab- 
lifhed,  the  2d  fe<5tion  of  the  3d  article  informs  us, 
*'  The  judicial   power  fhall  extend  to  all  cafes,  in 
law  and  equity,  arifmg  under  this  conftitution,  the 
laws  of  the   United  States,  and  treaties  made,  or 
which  fhall  be  made,  under  their  authority ;  to  all 
cafes   affecting  ambaffadors,  other  public  minifters 
and  confuls  ;    to  all  cafes  of  admiralty  and  maritime 
jurifdi£lion ;    to  controverfies  to  which  the  United 
States  fliall  be  a  party ;   to  controverfies  between 
two  or  more  flates,  between  a  flate  and  ciiizens  of 
another  flatc,  between  citizens  of  different  flates, 
between  citizens  of  the  fame  flare,  claiming  lands 
under  grants  of  different  flates,  and  between  a  flate, 
or  the  citizens  thereof,  and  foreign  flates,   citizens 
or  fubjefis. 


113 

"  In  all  cafes,  afte^ling  ambafTadors,  other  pub- 
lic minifters  and  confuls,  and  thofe  in  which  a  ftatc 
fliall  be  a  party,  the  fupreme  court  Ihall  have  origi- 
nal jurifdiftion.  In  all  the  other  cafes  before-men- 
tioned, the  fupreme  court  fliall  have  appellate  jurif- 
diftion,  both  as  to  law  and  faft,  with  fuch  excep- 
tions, and  under  fuch  regulations  as  the  Congrefs 
fliall  make." 

Thus,  then  we  find  that  the  judicial  power,  sbali 
extend  to  a  great  variety  of  cafes,  but  that  the  fu- 
preme court  iliall  have  only  appellate  jurifdi<ftion  in 
all  admiralty,  and  maritime  caufes,  in  all  controver- 
fies  between  the  United  States  and  private  citizens, 
between  citizens  of  different  ftates,  between  citi- 
zens of  the  fame  flate,  claiming  lands  under  differ- 
ent dates,  and  between  a  citizen  of  the  United 
States  and  foreign  ftates,  citizens  or  fubjefts.  The 
honourable  gentleman  from  Kentucky,  who  made 
the  motion  on  your  table,  has  told  us,  that  the  con- 
flitution  in  its  judiciary  provifions,  contemplated 
only  thofe  cafes  which  could  not  be  tried  in  the  flate 
courts.  But  he  will,  I  hope,  pardon  me,  when  I 
contend  that  the  conflitution  did  not  merely  contem- 
plate, but  did  by  exprefs  words,  rcferve  to  the  na- 
tional tribunals  a  right  to  decide,  and  did  fecure  to 
the  citizens  of  America,  a  right  to  demand  their  de- 
cifion  in  many  cafes  evidently  cognizable  in  the  ftate 
courts.  And  what  are  thefe  cafes  ?  They  are 
thofe  in  refpeft  to  which  it  is  by  the  conflitution 
prefumcd,  that  the  flate  courts  would  not  always 


114 

make  a  cool  and  calm  inveftigation,  a  fair  and  juft 
decifion.  To  form,  therefore,  a  more  perfect  unions 
and  to  insure  domestic  tranquillity,  the  con  flit  ution 
has  faid,  there  fliall  be  courts  of  the  Union  to  try 
caufes,  by  the  wrongful  decifion  of  which  the  Union 
might  be  endangered,  or  domeftic  tranquillity  be  dif- 
turbed.  And  what  courts?  Look  again  at  the 
cafes  defignatcd.  Tlie  fupreme  court  has  no  o/v^/- 
««/jurifdi6tion.  The  conftitution  has  faid,  that  the 
judicial  powers  fliall  be  verted  in  the  supreme  and 
inferior  coans.  It  has  declared  that  the  judicial 
powers  fo  veiled  fhall  extend  to  the  cafes  men- 
tioned, and  that  the  fupreme  court  fliall  not  have 
or/^/K^/ jurifdiftion  in  thofe  cafes.  Evidently,  there- 
fore, it  has  declared  that  they  fliall  (in  the  firll  ia- 
ftancc)  be  tried  by  inferior  courts,  with  appeal  to 
the  supreme  court.  This,  therefore,  amounts  to  a 
declaration  that  the  inferior  courts  shall  exifl.  Since 
without  them,  the  citizen  is  deprived  of  thofe  rights 
for  which  he  ftipulated,  or  rather  thofe  rights 
'verbally  granted,  would  be  actually  withheld  ;  and 
that  great  fecurity  of  our  Union,  that  neceflfary 
guard  of  our  tranquiUity,  be  completely  paralizcd,  if 
not  deftroyed.  In  declaring  then,  that  thefe  tribu- 
nals i/6^// tfx/j/,  it  equally  declares,  that  the  Con- 
grefs  shall  ordain  and  eftablifli  them.  I  fay  they 
shall ;  this  is  the  evident  intention,  if  not  the  cx- 
prefs  words,  of  the  conflitution.  The  convention 
In  framing,  the  American  people  in  adopting,  that 
corapa£l,  did  not,  could  not  prelurae,  that  the  Con- 


115 

grefs  would  omit  to  do,  what  they  were  thus  bound 
to  do.  They  Could  not  pi-efume,  that  the  legiflature 
would  hefifate  one  moment,  in  eflablifhing  the  or- 
gans necefTary  to  carry  intoefFe£l  thofe  wholefome, 
thofe  important  provifions. 

The  honourable  member  from  Virginia,  has  giv- 
en us  a  hiflory  of  the  judicial  fyftem,  and  in  the 
courfe  of  it,  has  told  us,  that  the  judges  of  the  fu- 
preme  court  knew,  when  they  accepted  their  offices, 
the  duties  they  were  to  perform,  and  the  falaries 
they  were  to  receive.  He  thence  infers,  that  if 
again  called* on,  to  do  the  fame  duties,  they  have  no 
right  to  complain.  Agreed.  But  that  is  not  the 
queflion  between  us.  Admitting  that  they  have 
made  a  hard  bargain,  and  that  we  may  hold  them 
to  a  ftrift  performance,  is  it  wife  to  exd.&  their  com- 
pliance to  the  injury  of  our  conftituents  ?  We  are 
urged  to  go  back  to  the  old  fyftem  ;  but  let  us  firft 
examine  the  effefts  of  that  fyftem.  The  judges  of 
the  fupreme  court  rode  the  circuits,  and  two  of  them 
with  the  affiftance  of  a  diftridl  judge,  held  circuit 
courts,  and  tried  caufes.  As  a  supreme  court  they 
have  in  moft  cafes  only  an  appellate  jurifdiftion.  In 
the  firft  inftance,  therefore,  they  tried  a  caufe  fitting 
as  an  inferior  coin'f,  and  then  on  appeal,  tried  it 
over  again  as  a  supreme  court.  Thus  then,  the  ap- 
peal was  from  the  fentence  of  the  judges,  to  the 
judges  themfelves.  But  fay,  that  to  avoid  this  im- 
propriety, you  will  incapacitate  the  twojudges,  who 
fat  on  the  circuit,  from  fitting  in  the  fupreme  court. 


lie 

to  review  their  own  decrees.  Strike  thcra  off:  and 
fuppofe,  either  the  fame,  or  a  contrary  decifion  to 
have  been  made  on  another  circuit,  by  two  of  ihcir 
brethren  in  a  fimilar  cafe.  For  the  fame  reafon  you 
flrike  them  off,  and  then  you  have  no  court  left. 
Is  this  wife  ?  Is  it  fafe  ?  You  plape  yourfelf  in  a 
fituation,  where  your  citizens  mud  be  deprived  of 
the  advantage  given  to  them  of  a  court  of  appeals, 
or  elfe  run  the  grcatefl:  ri/k  that  the  decifion 
of  the  firfl:  court  will  carry  with  it  that  of  the 
others. 

The  fame  honourable  member,  has  given  us  a 
hiflory  of  the  law  paffed  the  lad  fefllon,  which  he 
wiflies  now^  to  repeal.  That  hiflory  is  accurate  at 
leail  in  one  important  part  of  it.  I  believe,  that  all 
amendments  were  rejected,  pertinaciously  rejefted  : 
and  I  acknowledge,  that  I  joined  heartily  in  that 
rejeftion.  It  was  for  the  clearefi:  reafon  on  earth. 
We  all  perfeftly  underftood,  that  to  amend  the  bill, 
was  to  destroy  it.  That  if  ever  it  got  back  to  the 
other  Houfe,  it  would  pcrifli.  Thofe,  therefore, 
who  approved  of  the  general  provifions  of  that  bill, 
were  determined  to  adopt  it.  We  fought  the  prac- 
ticable good,  and  would  not,  in  purfuit  of  unattain- 
able perfcftion,  facrificc  that  good  to  the  pride  of 
opinion.  We  took  the  bill,  therefore,  with  its  im- 
perfections, convinced  that  when  it  was  once  paffed 
into  a  law,  it  might  be  cafily  amended. 

We  are  now  told,  that  this  procedure  was  im- 
proper J   nay,  that  it  was  indecent.     That  public 


117 

epmion  had  decJared  itfelf  againfl  us.    That  a  ma- 
jority Cholding  different  opinions)  w^s  already  cho- 
sen to  the  other  hoiife  j    and  that  a  firailar  majority 
was  expected  for  that  in  which  we  fit.     Mr.  Prefi- 
dent,  are  we  then  to  underiland,  that    oppofition 
to  the  majority  in  the  two  houfes  of  Congrefs  is  im- 
proper^ is  indecent  ?     If  fo — what  are  we  to  think 
of  thofe  gentlemen,  who  not  only  with  proper  and 
decent,  but  with  laudable  motives,  (forfuchis  their 
claim)  fo  long,   fo  perfeveringly,  fo  pertinacioufly, 
oppofed  that  voice  of  the  people,  which  had  fo  re- 
peatedly, and  for  fo  many  years,  declared  itfelf 
againfl:  them,  through  the  organ  of  their  reprefen- 
tatives  ?     Was  this   indecent  in  them  ?      If  not, 
how  could  it  be  improper  for  us  to  feize  the   only 
moment  which  was  left  for  the  then  majority  to  do 
what  they  deemed  a  neceflary  a6l  ?     Let  me  again 
refer  to  thofe  imperious  demands  of  the  conflitution, 
which  called  on  us  to  eflabllfli  inferior  courts.   Let 
me  remind  gentlemen  of  their  aifertion  on  this  floor, 
that  centuries  might  eiapfe  before  any  judicial  fyf- 
tem  could  be  eflabliflied  with  general  confent.    And 
then  let  me  afk,  being  thus  impreffcd  with  a  fenfe 
of  the  duty,  and  the  difficulty  of  performing  that 
arduous  talk,  was  it  not  wife  to  feize  the  aufplcious 
momept  ? 

Among  the  many  ftigmas  affixed  to  this  law, 
we  have  been  told  that  the  Prefident,  in  felefting 
men  to  fill  the  offices  which  it  created,  made  vacan- 
cies and  filled  them  from  the  floor  of  this  houfe. 


iia 

And  that,  but  for  the  influence  of  this  circumftance, 
a  majority  in  favour  of  it  could  not  have  been  found. 
Let  us  examine  this  fuggeflion.     It  is  grounded  on 
the  fuppofition  of  corrupt  influence  derived  from  a 
hope,  founded  on  two  remote,  and  fucceflive  con- 
tingencies.    Firfl:,  the  vacancy  might,  or  might  not 
exift: ;    for  it  depended  as  well  on  the  acceptance  of 
another,  as  on  the  Prefident*s  grant ;  and  Secondly, 
the   Prefident  might,   or  might   not  fill  it  with  a 
member  of  this  Houfe.     Yet  on  this  vague  conjec- 
ture, on  this  unliable  ground,  it  is  inferred,  that  men 
in  high  confidence,  violated  their  duty.     It  is  hard 
to  determine   the  influence  of  felf-interefl:  on  the 
heart  of  man.     I  fliallnot,  therefore,  make  the  at- 
tempt.    In  the  prefent  cafe  it  is  poflible,  that  the 
imputation  may  be  jufl  J   but  1  hope  not,  I  believe 
not.     At  any  rate  gentlemen  will  agree  with  me, 
that  the  calculation  is  uncertain  and  the  conjedure 
vague. 

But  let  it  now%  for  argument  fake,  be  admitted, 
faving  always  the  reputation  of  honourable  men, 
who  are  not  here  to  defend  therafelves.  Let  it,  1 
fay,  for  argument  fake  be  admitted,  that  the  gen- 
tlemen alluded  to,  afted  under  the  influence  of  im- 
proper motives.  AVhat  then  ?  Is  a  law,  that  has 
received  the  varied  aflTent  required  by  the  conftitu- 
tion,  and  is  cloathcd  witli  all  the  needful  formali- 
ties, thereby  invalidated  ?  Can  you  impair  its  force 
by  impeaching  the  motives  of  any  member  who 
voted  for  it  ?    Does  it  follow,  that  a  law  is  bad  be- 


119 

caufe  all  thofe  who  concurred  in  it,  cannot  give  good 
reafous  for  their  votes  ?  Is  it  not  before  us  ?  Muft 
we  not  judge  of  it  by  its  intrinfic  merit  ?  I3  it  a 
fair  argument,  addrefTed  to  our  underftanding,  to 
fay  we  mull  repe<il  a  Ia,w,  even  a  good  one,  if  the 
enabling  of  it  may  have  been  effefted  in  any  degree 
by  improper  motives  ?  Or  is  the  judgment  of  this 
Houfe  fo  feeble,  that  it  may  not  be  trufted  ? 

Gentlemen  tell  us,  however,  that  the  law  is  ma- 
terially defeftive,  nay,  that  it  is  unconflitutional. 
What  follows  ?  Gentlemen  bid  us  repeal  it.  But 
is  this  juft  reafoning  ?  If  the  law  be  only  defeftive^ 
why  not  amend  ?  And  if  unconflitutional,  why  re- 
peal ?  In  this  cafe  no  repeal  can  be  neceilary ;  the 
law  is  in  itfelf  void  5  it  is  a  mere  dead  letter. 

To  £hew  that  it  is  unconflitutional,  a  particular 
claufe  is  pointed  out,  and  an  inference  is  made,  as  in 
the  cafe  of  goods,  where  becaufe  there  is  one  con- 
traband article  on  board,  the  whole  cargo  is  forfeit- 
ed. Admit  for  a  moment,  that  the  part  alluded  ta 
were  unconflitutional,  this  would  in  no  wife  alFe6t 
the  remainder.  That  part  would  be  void  ;  or  if  you 
think  proper,  you  can  repeal  that  part. 

Let  us,  however,  examine  the  claufe  objected 
to  on  the  ground  of  the  conftitution.  It  is  faid, 
that  by  this  law  the  district  judges  in  Tennefl'ee  and 
Kentucky,  are  removed  from  office,  by  making  them 
circuit  judges.  And  again,  that  you  have  by  law 
appointed  two  new  offices,  thofe  of  circuit  judges^ 
and   filled  them  by  law,  inftead  of  purfuing  the 


120 

modes  of  appointment  prefcribed  by  the  conftitu- 
tion.  To  prove  all  this,  the  gentleman  from  Virgi- 
nia did  us  the  favour  to  read  thofe  parts  of  the  law 
which  he  condemns  j  and  if  I  can  trull  to  my  memo- 
ry, it  is  clear  from  what  he  read,  that  the  law  does 
not  remove  \\\tk.  district  judges ,  neither  does  it  ap- 
point them  to  the  office  of  circuit  judges.  It  does 
indeed  put  down  the  distrid  courts  ;  but  is  fo  far 
from  deftroying  the  offices  of  diftrift  judge,  that  it 
declares  the  perfons  filling  those  offices,  Ihall  perform 
the  duty  of  holding  the  circuit  courts.  And  fo  far 
b  it  from  appointing  circuit  judges,  that  it  declares 
the  circuit  courts  fhall  be  held  by  the  district  Judges. 
But  gentlemen  contend,  that  to  discontinue  the  dif- 
tri£l:s  courts,  was  in  effect  to  remove  the  diftrift 
judges.  This,  fir,  is  fo  far  from  being  a juft  inference 
from  the  law,  that  the  dircft  contrary  follows  as  a 
neccfTary  result ;  for  it  is  on  the  principle  that  thefe 
judges  continue  in  office  after  their  courts  are  dif- 
continued,  that  the  new  duty  of  holding  other 
courts,  is  affigned  to  them.  But  gentlemen  fay, 
this  doftrine  militates  with  the  principles  we  contend 
for.  Surely  not.  It  m'uft  be  recolkfted,  fir,  that 
we  have  repeatedly  admitted  the  right  of  the  legifla- 
ture,  to  change,  alter,  modify  and  amend,  the  judi- 
ciary fyftem,  fo  as  bcil  to  promote  the  interelT:  of 
the  people.  We  only  contend,  that  you  fhall  not 
exceed,  or  contravene  the  authority,  by  which  you 
aft.  But,  fay  gentlemen,  you  forced  this  new  office 
on  the  dillrift  judges,  and  this  is  in  effcft,   a  new 


121 

appointment.     I  anfwer,  that  the  queflion  can  only 
arife  on  the  refufal  of  thofe  judges  to  aft.     But  is 
it  unconflitutional  toaffign  new  duties  to  officers  al- 
ready exifting  ?   I  fear,    that  if  this  conftruftion  be 
adopted,  our  labours  will  fpeedily  end  ;   for  we  (hall 
be  fo  (hackled,  that  we  cannot  move.    What  is  the 
praftice  ?  Do  we  not,  every  day  call  upon  particu- 
lar officers,  to  perform  duties,  not  previoufly  affign- 
ed  to,  or  required  of  them  ?  And  mud  the  execu- 
tive, in  every  fuch  cafe  make  a  new  appointment  ? 
But,  as  a  further  reafon  to  reftore,  by  repeahng 
this  law,  the  old  fyitem,  an  honourable   member 
from  North-Carolina,  has  told  us,  the  judges  of  the 
fupreme  court  Ihould  attend  in  the  ftatcs,   to  ac» 
quire  a  competent  knowledge   of  local  inftitutions, 
and  for  this  purpofe  Ihould  continue  to  ride  the  cir- 
cuits.    1  believe  there  is  great  ufe  in  fending  young 
men  to  travel  ;  it  tends  to  enlarge  their  views,  and 
give  them  more  liberal  ideas  than  they  might  other- 
wife  pofTefs.    Nay,  if  they  relide  long  enough  in 
foreign  countries,  they  may  become  acquainted  with 
the  manners  of  the  people,  and  acquire  fome  know- 
ledge of  their  civil  inftitutions.     But  I  am  not  quite 
convinced,  that  riding  rapidly  from  one  end  of  this 
country  to  the  other,  is  the  befl  way  to  fludy  law. 
I  am  inclined   to  believe,  that  knowledge  may  be 
more  conveniently  acquired  in  the  clofet,  than  upon 
the  high  road.     It   is,  morever,    to  be  prefumed, 
that  the  firft  magiftrate  would,  in  felefting  perfons 
.to  fill  thefe  offices,  take  the  bed  charafters  from 


122 


the  different  parts  of  the  country,  who  already  pof- 
fefs  the  needful  acquirements.  But  admitting  that 
the  Prefident  fhould  not  duly  cxercife  in  this  refpeft 
his  difcretionary  powers,  and  admitting  that  the 
ideas  of  the  gentleman  are  correft,  how  wretched 
muft  be  our  condition  !  Thefe,  our  judges,  when 
called  on  to  exercife  their  fun^lions,  would  but  be- 
gin to  learn  their  trade,  and  that  too  at  a  period  of 
life,  when  the  iutelleclual  powers  with  no  great  fa- 
cility can  acquire  new  ideas.  We  mud,  therefore, 
have  a  double  fet  of  judges.  One  fet  of  apprentice 
judges  to  ride  circuits  and  learn,  the  other  fet  of 
maffer  judges  to  hold  courts  and  decide  controverfi- 
fies. 

We  arc  told,  fir,  that  the  repeal  aflced  for,  is 
important,  in  that  it  may  eftablifli  a  precedent ;  for 
that  it  is  not  merely  a  queftion  on  the  propriety  of 
difbanding  a  corps  of  fixtecn  rank  and  file  ;  but 
that  provifion  may  hereafter  be  made,  not  for  fixtcen, 
but  for  fixteen  hundred,  or  fixteen  thoufand  judges^ 
and  that  it  may  become  neceflary  to  turn  them  to 
the  right  about.  Mr.  Prefident,  I  will  not,  I  can- 
Bot  prefume,  that  any  fuch  provifion  will  ever  be 
made,  and  therefore  I  cannot  conceive  any  fuch  ne- 
ccfilty  ;  I  will  not  fuppofe,  for  I  cannot  fuppofe,  that 
any  party  or  fii£tion  will  ever  do  any  thing  fo  wild, 
fo  extravagant.  But  I  will  a/lc,  how  does  this 
ftrange  fuppofition  confift  with  the  doftrine  of  gen- 
tlemen, that  public  opinion  is  a  fufficient  check  on  * 
the  legiflature,  and  a  fufficient  fafe-guard  to  the 


123 

pedple.'-  Put  the  cafe  to  Its  confequences,  and  what 
becomes  of  the  check  ?  Will  gentlemen  fliy  it  is  to 
be  found  in  the  force  of  this  wife  precedent  ?  Is  this 
to  control  fucceeding  rulers  in  their  wild,  their  mad 
career  ?  But  how  ?  Is  the  creation  of  judicial  offi- 
cers the  only  thing  committed  to  their  difcretion  ? 
Have  they  not,  according  to  the  doctrine  contended 
for,  our  all  at  their  difpofition,  with  no  other  check 
than  public  opinion,  which,  according  to  the  fuppo- 
Ction,  will  not  prevent  them  from  committing  the 
greatefl  follies,  and  abfurdities  ?  Take  then  all  the 
gentleman's  ideas,  and  compare  them  together,  it 
will  refult  that  here  is  an  ineflimable  treafure,  put 
into  the  hands  of  drunkards,  madmen,  and  fools. 

But  away  with  all  thefe  derogatory  fuppofitions. 
The  legiflature  may  be  trufted.  Our  government 
is  a  fyftem  of  falutary  checks.  One  legiflative  branch 
is  a  check  on  the  other.  And  fliould  the  violence 
of  party  fpirit  bear  both  of  them  away,  the  Prefi- 
dent,  an  officer  high  in  honour,  high  in  the  public 
confidence,  charged  with  weighty  concerns,  refpon- 
fible  to  his  own  reputation,  and  to  the  world,  flands 
ready  to  arreft  their  too  impetuous  courfe.  This 
is  our  fyftem.  It  makes  no  mad  appeal  to  every 
mob  in  the  country.  It  appeals  to  the  fober  fenfe 
of  men  fele(5led  from  their  fellow-citizens,  for  their 
talents,  for  their  virtue — of  men  in  advanced  life, 
and  of  matured  judgment.  It  appeals  to  their  un- 
derftanding,  to  their  integrity,  to  their  honour,  to 
their  love  of  fame,  to  their  (eu-k  ofUiame.     If  all 

R 


124 

thefc  chcctcs  iliould  prove  infufficient,  and  alas !  fuch 
is  the  condiuon  of  human  nature,  that  I  fear  they 
will  not  always  be  fufficient,   the  conflitution  has 
given  us  one  more.    It  has  given  us  an  independent 
judiciary.     We  have  been  told,  that  the  executive 
authority  carries  your  laws  into  execution.     But  let 
us  not  be  the  dupes  of  found.     The  executive  magi- 
ftrate  commands  indeed  your  fleets  and  armies  ;  and 
duties,  impofls,  excifes,  and  all  other  taxes,  are  col- 
lefted,   and  all  expenditures  are  made  by  officers 
whom  he  has  appointed.     So  far  indeed  he  executes 
your  laws.     But  thefe,  his  afts  apply  not  often  to 
individual  concerns.     In  thofe  cafes  (o  important  to 
the  peace  and  happinefi  of  fociety,  the  execution  of 
your  laws  is  confided  to  your  judges.    And  therefore 
are  they  rendered  independent.     Before  then,  that 
you  violate  that  independence — Paufe.   There  are 
ftate  fovereignties,  as  well  as  the  fovercignty  of  the 
general  government.     There  are  cafes,   too  many 
cafes,   in  which  the  intereft  of  one,  is  not  confidered 
as  the  interefl  of  the  Qther.     Should  thefe  conflift, 
if  the  judiciary  be  gone,  the  quefliou  is  no  longer  of 
law,  but  of  force.     This  is  a  ftate  of  things  which  no 
honeft  and  wife  man  can  view  without  horror. 

Suppofe,  in  the  omnipotence  of  your  Icgiflativc 
authority,  you  trench  upon  the  rights  of  your  fel- 
low citizens,  by  pafling  an  unconftitutional  law  :  if 
the  judiciary  department  prelerve  its  vigour,  it  will 
Hop  you  fhort,     laftcad  of  a  refort  to  arms,  there 


125 

will  be  a  happier  appeal  to  arguments  Suppofc  a 
cafe  ftill  more  impreflive.  The  Prefidcnt  is  at  the 
head  of  your  armies.  Let  one  of  his  generals, 
flufhcd  with  victory,  and  proud  in  command,  pre- 
fume  to  trample  on  the  rights  of  your  mod  infigni- 
iicant  citizen.  Indignant  of  the  wrong,  he  will 
demand  the  proteftion  of  your  tribunals  ;  and,  fafe 
in  the  fliadow  of  their  wings^  will  laugh  his  op- 
preflbr  to  fcorn. 

Having  now,  I  believe,  examined  all  the  argu- 
ments adduced  to  fhew  the  expediency  of  this  mo. 
tioi;i,  and  which,  fairly  fifted,  reduce  themfelves  at 
laft,  to  thefe  two  things,  reftore  the  ancient  fyf- 
tem,  and  fave  the  additional  expenfe,  before  I 
clofej  what  I  have  to  fay  on  this  ground,  I  hope  I 
fliall  be  pardoned  for  faying  one  or  two  words  about 
the  expenfe.  I  hope,  alfo,  that  notwithflanding 
the  epithets  which  may  be  applied  to  ray  arithmetic, 
I  (hall  be  pardoned  for  ufnig  that  which  I  learnt 
at  fchool.  It  may  have  deceived  me  when  it  taught 
that  two  and  two  make  four.  But,  though  it 
ihould  now  be  branded  with  opprobrious  terms, 
I  muft  still  belie\'^e,  that  two  and  two  do  still  make 
four.  Gentlemen  of  newer  theories,  and  of  higher 
attainments,  while  they  fmile  at  my  inferiority, 
mufl  bear  with  my  infirmities,  and  take  me  as  I  am. 

In  all  this  great  fyftem  of  faving,  in  all  this  often- 
tatious  economy,  this  rage  of  reform,  how  happens 
it  that  the  eagle  eye  has  not  yet  been  turned  to 
the  mint  t    That  no  one  piercing  glance  has  beea 


# 


126 


able  to  behold  the  expenditures  of  that  department  ? 
I  am  far  from  wilhing  to  overturn  it.  Though  it 
be  not  of  great  necellity,  nor  even  of  fubftantial 
importance  ;  though  it  be  but  a  fplendid  trapping 
of  your  government :  yet,  as  it  may,  by  impreffing 
on  your  current  coin,  the  emblems  of  your  fove- 
rcignty,  have  fome  tendency  to  encourage  a  nation- 
al fpirit,  and  to  fofler  the  national  pride,  I  am 
willing  to  contribute  my  fliare  to  its  fupport.  Yes, 
fir,  I  would  fofler  the  national  pride.  1  cannot,  in- 
deed, approve  of  national  vanity,  nor  feed  it  with 
vile  adulation.  But  I  would  gladly  cherifti  the 
lofty  fentiment  of  national  pride.  I  would  wifli  my 
countrymen  to  feel  like  Romans,  to  be  as  proud  as 
Engiiflimen,  and,  going  ftill  further,  I  would  wifli 
them  to  veil  their  pride  in  the  well-bred  modefly  of 
French  politenefs.  But,  can  this  eftabjifliment,  the 
mere  decoration  of  your  political  edifice,  can  it  be 
compared  with  the  maffy  columns  on  which  rcfl; 
your  peace  and  fafety  ?  Sh&ll  the  flriking  of  a  few 
half-pence  be  put  into  a  parallel  with  the  diflribu- 
tion  of  juflice  ?  I  find,  fir,  from  the  eftimates  on 
your  t.^ble,  that  the  falaries  of  the  officers  of  your 
mint  amount  to  10,600  dollars,  and  that  the  expen- 
fes  are  cftimated  at  10,900  ;  making  21,500  dol- 
lars. 

I  find,  that  the  aftual  expenditure  of  the  lad 
year,  exclufivc of  falaries,  amounted  to  25,154  44 

Add  the  falaries,  10,600 


We  have  a  total  of,  Dollars,  25f75^  44 


A  fum  which  exceeds  the  falary  of  thefc  fixteen 
judges. 

I  find,  further,  that  during  the  lafl:  year  they 
have  coined  cents  and  half  cents  to  the  amount  of 
1 0,473  dollars  and  29  cents.  Thus,  their  copper 
coinage  falls  a  little  fiiort  of  what  it  cofts  us  for 
their  falaries.  We  have,  however,  from  this  efta- 
blifhraent,  about  a  million  cents,  one  to  each  family 
in  America.  A  little  emblematic  medal,  to  be  hung 
over  their  chimney  pieces  j  and  this  is  all  their  cora- 
penfation  for  all  that  expenfe.  Yet,  not  a  word  has 
been  faid  about  the  mint  j  while  the  judges,  whofe 
fervices  are  fo  much  greater,  and  of  fo  much  more 
importance  to  the  community,  are  to  be  llruck  oft' 
at  a  blow,  in  order  to  fave  an  expenfe,  which,  com- 
pared with  the  object,  is  pitiful.  What  conclufion, 
then,  are  we  to  draw  from  this  predilection  ? 

I  v/ili  not  pretend  to  aiTign  to  gentlemen,  tbe 
motives  by  which  they  may  be  influenced  j  but  if  I 
ihould  permit  myfelf  to  make  the  inquiry,  the  flyle 
of  many  obfervations,  and  more  efpeclally  the  man- 
ner, the  warmth,  the  irritability,  which  have  been 
exhibited  on  this  occaflon,  would  lead  to  a  folution 
of  the  problem.  I  had  the  honour,  fir,  when  I  ad- 
drefTed  you,  the  other  day,  to  obferve,  that  I  believ- 
ed the  univerfe  could  not  afford  a  fpe£lacle  more 
fublime,  than  the  view  of  a  powerful  flate  kneeling 
at  the  altar  of  juflice,  and  facrificing  there,  her  paf- 
lion  and  her  pride.  Ihat  I  once  follered  the  hope 
of  beholding  that  fpeClacle  of  magnanhnity  in  Ame- 


• 


rica.  And  now,  what  a  world  of  figures  has  the 
gentleman  from  Virginia  formed  on  his  mifappre- 
hcnfion  of  that  remark.  I  never  expreffed  any 
thing  like  exultation  at  the  idea  of  a  ftate  ignomini- 
oufly  dragged  in  triumph,  at  the  heels  of  your 
judges.  But,  permit  me  to  fay,  the  gentleman's 
cxquifite  fenfibility  on  that  fubjcft,  his  alarm  and 
apprehenfion,  all  fticw  his  ilrong  attachment  to  ftatc 
authority.  Far  be  it  from  me,  however,  to  charge 
the  gentleman  with  improper  motives.  I  know  that 
his  emotions  arife  frotn  one  of  thofe  imperfeftions 
m  our  nature,  which  we  cannot  remedy.  They 
are  excited  by  caufes  which  have  naturally  made 
him  hoftile  to  this  conftitution,  though  his  duty 
compels  him,  reluflantly,  to  fupport  it.  I  hope, 
however,  that  thofe  gentlemen,  who  entertain  dif- 
ferent fentiments,  and  who  are  lefs  irritable  on  the 
fcore  of  flatc  dignity,  will  think  it  eflential  to  pre- 
ferve  a  conftitution,  without  which,  the  independent 
cxiftence  of  the  ftates  themfelves,  will  be  but  of 
fhort  duration. 

This,  fir,  leads  me  to  the  fecond  object  I  had 
propofed.  I  fliall,  therefore,  pray  your  indulgence 
while  I  confider  how  far  this  raeafure  is  constitw 
iional. 

I  have  not  been  able  to  difcover  the  expediency, 
but  will  now,  for  argument's  fake,  admit  it  ;  and 
here,  I  cannot  but  exprefs  my  deep  regret  for  the 
fituation  of  an  honourable  member  from  North- 
Carolma.     Tied  hft,  as  he  is,  by  his  inftru^ions, 


129 

arguments,  however  forcible,  can  never  be  effe«^ua'l. 
I  ought,  therefore,  to  wi(h,  for  his  fake,  that  his 
mind  may  not  be  convinced  by  any  thing  1  fliall  fay; 
for  hard,  indeed,  would  be  his  condition,  to  be 
bound  by  the  contrarient  obligations  of  an  order, 
and  an  oath.  I  cannot,  however,  but  exprefs  my 
profound  refpeft  for  the  talents  of  thofe  who  gave 
bim  his  inftruftions,  and  who,  fitting  at  a  diflance, 
without  hearing  the  arguments,  could  better  under* 
ftand  the  fubje^l  than  their  fenator,  on  this  ilopr, 
after  full  difcufTion. 

The  honourable  member  from  Virginia,  has 
repeated  thcdiftinftion,  before  taken,  between  the 
fupreme  and  the  inferior  tribunals ;  he  has  infilled  on 
the  diflinftion  between  the  words  Jhall  and  may  ; 
has  inferred,  from  that  diilin^lion,  that  the  judges 
of  the  inferior  courts  are  fubjeds  of  legiflative  dif- 
cretion  ;  and  has  contended,  that  the  word  ?nay,  in- 
cludes all  power  refpe£ling  the  fubjecl  to  which  it-is 
applied  j  confequently,  to  raife  up,  and  to  put 
down,  to  create,  and  to  deftroy.  1  rauH:  entreat 
your  patience,  fir,  while  I  go  more  into  this  fubjed 
than  I  ever  fuppofed  would  be  nccefTary.  By  the 
article,  fo  often  quoted,  it  is  declared,  "  That  the 
Judicial  power  of  the  United  States,  fiail  be  vefted 
in  one  fupreme  court,  and  in  fuch  inferior  courts, 
as  the  Gongrefs  ?nay,  from  time  to  time,  eftablifh.'* 
I  beg  leave  to  recall  your  attention  to  what  I  have 
already  faid  of  >tliefe  inferior  courts.  That  the  ori- 
ginal Jiirisdiclion  of  various  subjects  being  givcp.  eX" 


130 

tmrfuely  to  thetn,  it  became  the  hounden  duty   of  Con- 
gress to  establish  such  courts.     I  will  not  Repeat  the 
argument  already  ufed  on  that  fubjeft*.    But  I  will 
a/k  thofc   who  urge  the   diftinf^tion  between  the 
fnpreme  court  and  the  inferior  tribunals,  whether  a 
law  was  not  previoufly  nccelTary  before  the  fnpreme 
court  could  be  organized.     They  reply^    that  the 
conflitution  fays,  there  shall  be  a  fupreme  court, 
and,  therefore,   the   Congrefs  are  commanded  to 
organize  it,  while  the  reft  is  left  to  their  difcrction. 
This,  fir,  is  not  the  fa£t.     The  conftitution  fays,  the 
judicial  power  fhall  be  vefted  in  one  fupreme  courts 
and  in  inferior  courts.     The  legiflature  can,  there- 
fore, only  organize  one  fupreme  court,  but   they 
may  cftablifh  as  many  inferior  courts  as  they  (hall 
think  proper.     The  defignation  made  of  them,  by 
the  conftitution,  is,  fuch  inferior  courts  as  the  Con- 
grefs may,  from  time  to  time,  ordain  and  establish. 
But  why,  fay  gentlemen,  fix  precifely  one  fupreme 
court,  and  leave  the  reft   to  legiflative  difcretion .'' 
The  anfwer  is  fimple.     It  refults  from  the  nature  of 
things,  from  the  cxiftent  and  probable  ftate  of  our 
country.     There  was  no  difficulty  in  deciding,  that 
one,  and  only  one,  fupreme  court  would  be  proper  or 
neceffary,  to  which  fliould  lie  appeals  from  inferior 
tribunals.    Not  fo  as  to  thefe.     The  United  States 
•were  advancing  in  rapid  progreffion.    Their  popu- 
lation, of  three  millions,  was  foon  to  become  five, 
then   ten,  afterwards   twenty  millions.     This  was 
"Well  known,  as  far  as  the  future  can  become  an  obr^ 


131 

jeA  of  human  comprehenfion.  In  this  increafe  of 
numbers,  with  a  dill  greaterincreafcof  wealth,  with 
the  extenfion  of  our  commerce,  and  the  progrcfs  of 
the  arts,  it  was  evident,  that,  although  a  great  ma- 
ny tribunals  would  become  necelTary,  it  was  impof- 
fibie  to  determine  either  the  precife  number  or  the 
moft  convenient  form.  The  convention  did  not 
pretend  to  this  prcfcience  j  but  had  they  pofleffed 
it,  would  it  have  been  proper  to  have  cftablifhed, 
then^  all  the  tribunals  neceflUry  for  all  future  times? 
Would  it  have  been  wife  to  have  planted  courts 
among  the  Chickafaws,  the  Chocktaws,  the  Che- 
rokces,  the  Tufcaroras,  and  God  knows  how  ma- 
ny more,  becaufe,  at  fome  future  day,  the  regions 
over  which  they  roam  might  be  cultivated  by  polifh- 
ed  men  ?  Was  it  not  proper,  wife,  neceffary,  to 
leave  in  the  difcretibn  of  Congrefs,  the  number 
and  the  kind  of  courts,  which  they  might  find  it 
proper  to  establish  for  the  purpofe  defignatcd  by 
the  conftitution.  This  fimple  ftatement  of  fafts, 
fafts  ot  public  notoriety,  is,  alone,  a  fufficient 
comment  on,  and  explication  of,  the  word,  on 
which  gentlemen  have  fo  much  relied.  The  con- 
vention in  framing,  the  people  in  adopting,  this 
corapaft,  fay,  the  judicial  power  Jhall  extend  to ' 
many  cafes,  the  original  cognizance  whereof  fhall  be 
by  the  inferior  courts  ;  but  it  is  neither  neceffary, 
nor  even  poffible,  now  to  determine  their  number 
or  their  form  ;  4ljat  effential  power,  therefore,  flialL 
veft  in  fuch  inferior  courts,  as  the  Congrefs  may. 


132 

from  time  to  time,  in  the  progrcflion  of  time,  and 
according  to  the  indication  of  circumftances,  esta- 
blish.  Not  provide  or  determine,  but  establish. 
Not  a  njcre  temporary  provifion,  but  an  establish' 
tnent.  If,  after  this,  it  had  faid,  in  general  term3> 
thatyW^^j  fliould  hold  their  offices  during  good  be- 
haviour, could  a  doubt  have  exifted  on  the  interpret 
tation  of  this  aft,  under  all  its  attending  circumftan- 
ces, that  the  judges  of  the  inferior  courts  were  in- 
tended, as  well  as  thofe  of  the  fupreme  court  ? 
But  did  the  fraraers  of  the  conftitution  ftop  there  ? 
Is  there  then  nothing  more  ?  Did  they  rifque  on 
thefe  grammatical  niceties  the  fate  of  America  ? 
Did  they  reft  here  the  moft  important  branch  of 
our  government  ?  Little  important,  indeed,  as  to 
foreign  danger  ;  but  infinitely  valuable  to  our 
domeftic  peace,  and  to  perfonal  protection  againft 
the  opprcfTion  of  our  rulers.  No.  Left  a  doubt 
ftiould  be  raifed,  they  have  carefully  counefted  the 
judges  of  both  courts  in  the  fame  fentence  ;  they 
have  faid,  "  the  judges  both  of  the  supreme  and  in- 
ferior courts,'*  thus  coupling  them  infeparably  toge- 
ther. You  may  cut  the  bands,  but  you  can  never 
untie  them.  With  falutary  caution,  they  dcvifcd 
this  claufe,  to  arreft  the  overbearing  temper,  which, 
they  knew,  belonged  to  legiilative  bodies.  They 
do  not  fay  the  judges,  fimply,  but  the  judges  of 
the  supreme  and  inferior  courts,  (hall  hold  their 
offices  during  good  behaviour.  They  fay,  there- 
fore, to  the  legiflature,  you  may  judge  of  the  pro* 


pricty,  the  utilityj  the  neceffity,  of  organizing  thefe 
courts  ;  but,  when  establijhed,  you  have  done  your 
duty.  Anticipating  the  courfe  of  paflion,  in  future 
times,  they  fay,  to  the  legillature,  you  ihall  not  dif- 
grace  yourfelves,  by  exhibiting  the  indecent  fpefta- 
cle,  of  judges,  eftablifhed  by  one  legiflature,  re>»ii 
moved  by  another.  We  will  fave  you  alfo  froni 
yourfelves.  We  fay,  thefe  judges  Jhall  hold  their 
offices ;  and  furely,  fir,  to  pretend  that  they  can 
hold  their  office,  after  the  office  is'deftroyed,  is 
contemptible,  i^*f 

The  framers  of  this  conftitution  had  feen  much, 
read  much,  and  deeply  reflefted.  They  knew,  by 
experience,  the  violence  of  popular  bodies  j  and, 
let  it  be  remembered,  that  fince  that  day,  many  of 
the  ftates,  taught  by  experience,  have  found  it 
neceffary  to  change  their  forms  of  government,  to 
avoid  the  eftefts  of  that  violence.  The  convention 
contemplated  the  very  acl:  you  now  attempt.  They 
knew  alfo  the  jealoufy  and  the  power  of  the  flates  j 
and  they  cftablilhed,  for  your  and  for  their  protec- 
tion, this  moft  important  department.  I  beg  gen- 
tlemen to  hear  and  to  remember  what  I  fay.  It  is 
this  department  alone,  and  it  is  the  independence 
alone  of  this  department,  which  can  fave  you  from 
civil  war.  Yes,  fir,  adopt  the  language  of  gentle- 
men ;  fay,  with  them,  by  the  aft  to  which  you  are 
•urged,  "  If  we  cannot  remove  the  judges,  we  can 
deftroy  them."  Eflablifh  thus  the  dependence  of 
the  judiciary  department.  Who  will  refort  to  them 
for  proteftion  againll  you  ?    Who  wjU  confide  in. 


134 

who  will  be  bound  by  their  decrees  ?  Are  we  then 
to  rcfort  to  the  ultimate  reafon  of  kings  ?  Arc 
our  arguments  to  fly  from  the  mouths  of  our 
cannon  ? 

We  arc  told  that  we  may  violate  our  conftitu- 
tion,  becaufe  fimilar  conflitutions  have  been  violat- 
ed elfewhere.  Two  flates  have  been  cited  to  that 
cflFcft,  Maryland  and  Virginia.  The  honourable 
gentleman  from  Virginia,  tells  us,  that  when  this 
happened,  in  the  ftate  he  belongs  to,  no  complaint 
was  made  by  the  judges,  I  will  not  enquire  into 
that  faft,  although  I  have  the  protefl:  of  the  judges 
now  lying  before  me  ;  judges,  eminent  for  their 
talents,  renowned  for  their  learning,  refpeftable  for 
their  virtue.  I  will  not  enquire  what  conflitutions 
have  been  violated.  I  will  not  aik  either  when 
or  where  this  dangerous  praftice  began,  or  has 
been  followed.  I  will  admit  the  faft.  What  does 
it  prove  ?  Does  it  prove,  that,  becaufe  they  have 
violated,  we  alfo  may  violate  ?  Does  it  not  prove 
diredly  the  contrary  ?  Is  it  not  the  (Irongeft  rea- 
fon on  earth  for  prefcrving  the  independence  of  our 
tribunals  ?  If  it  be  true  that  they  have,  with 
ftrong  hand,  fcized  tbeir  courts,  and  bent  them  to 
their  will,  ought  we  not  to  give  fuitors  a  fair 
chance  f(jr  juflice  in  our  courts,  or  raufl  the  fuflTer- 
ing  citizen  be  deprived  of  all  protection  ? 

The  gentleman  from  Virginia  has  called  our  at- 
tention to  certain  cafes,  which,  he  confiders  as 
forming  necefTary  exceptions  to  the  principles  for 


135    • 

which  we  contend.     Permit  me  to  fay,  that  neccffi- 
ty  is  a  hard  law,  and  frequently  proves  too  much  ; . 
and.   Jet  the  gentleman  recolleft,  that  arguments 
which  prove  too  much  prove  nothing. 

He  has  inftanced  a  cafe  where  it  may  be  pro^ 
per  to  appoint  commiffioners,  for  a  limited  time, 
to  fettle  fome  particular  defcription  ©f  controverlies. 
Undoubtedly  it  is  always  in  the  power  of  Congrefs 
to  form  a  board  of  commiffioners  for  particular 
purpofes.  He  a/ks,  arc  these  inferior  courts,  and 
mud  they  alfo  exift  forever  ?  I  anfwer,  that  the 
nature  of  their  offices  muft  depend  upon  the  law 
by  which  they  are  created  ;  if  called  to  exercife  the 
judicial  fundions,  defignated  by  the  conftitution, 
they  muft  have  an  exiftence  conformable  to  its  in- 
junctions. 

Again,  he  has  inftanced  the  Miffiiippi  territory, 
claimed  by,  and  which  may  be  furrendered  to,  the 
ftaie  of  Georgia,  and  a  part  of  the  Union,  which 
may  be  conquered  by  a  foreign  enemy.  And  he 
afks,  triumphantly,  are  our  inferior  courts  to  re- 
main after  our  jurifdidion  is  gone  ?  This  cafe 
refts  upon  a  principle  fo  iimple,  that  1  am  furprifed 
the  honourable  member  did  not  perceive  the  anfwer 
in  the  very  moment  when  he  made  the  objeftion. 
Is  it  by  our  aft  that  a  country  is  taken  from  us  by 
a  foreign  eaemy  .f*  Is  it  by  our  confcnt  that  our 
jurifdiftion  is  loft  ?  I  had  the  honour,  in  fpeaking 
the  other  day,  exprefsly,  and  for  the  moft  obvious, 
reafons,  to  except  the  cafe  of  conqueft.     As  well. 


136 

wight  we  contend  for  the  government  of  a  town 
fwallowed  up  by  an  earthquake. 

General  Mason  explained  :  He  had  fuppofcd 
the  cafe  of  territory  conquered,  and  afterwards 
ceded  to  the  conqueror,  or  fome  other  territory 
ceded  in  heu  of  it. 

Mr.  Morris.  The  cafe  is  precifely  the  fame. 
Until  after  the  peace,  the  conquefl  is  not  complete. 
Every  body  knows,  that  until  the  ceffion  by  treaty, 
the  original  owner  has  the  poftliminary  right  to  a 
territory  taken  from  him.  Beyond  all  queftion, 
where  Congrefs  arc  compelled  to  cede  the  territory, 
the  judges  can  no  longer  exift,  unlefs  the  new  fove- 
|-eign  confer  the  office.  Over  fuch  a  territory,  the 
authority  of  the  conftitution  ceafes,  and  of  courfe 
the  rights  which  it  confers. 

It  is  faid,  the  judicial  inftitution  is  intended  for 
the  benefit  of  the  people,  and  not  of  the  judge ; 
and  it  is  complained  of,  that  in  fpeaking  of  the  office, 
we  fay,  it  is  his  office.  Undoubtedly  the  inftitu- 
tion is  for  the  benefit  of  the  people^  But  the  quef- 
tion remains,  how  will  it  be  rendered  mod  benefi- 
cial ?  Is  it  by  making  the  judge  independent,  by 
making  it  his  office ;  or  is  it  by  placing  him  in  a 
ftate  of  abjefl:  dependence,  fo  that  the  office  ihall 
be  his  to-day,  and  belong  to  another  to-morrow  ? 
Let  the  gentlemen  hear  the  words  of  the  cenftitu- 
tion  :  it  fpeaks  oi  their  offices,  confequently,  as  ap- 
plied to  a  fingle  judge,  of  his  office,  to  beexcrcifcd 


137 

by  him,  for  the  benefit  of  the  people  of  America, 
to  which  exercife,  his  independence  is  as  neceffary  as 
his  office. 

,  The  gentleman  from  Virginia  has,  on  this  occa- 
fion,  likened  the  judge  to  a  bridge,  and  to  various 
other  objefts ;  but  I  hope  for  his  pardon,  if,  while 
I  admire  the  lofty  flights  of  his  eloquence,  I  abflaiii 
from  noticing  obfervations,  which,  I  conceive,  to  be 
utterly  irrevelant. 

The  fame  honourable  member  has  not  only  given 
ns  his  hiftory  of  the  fupreme  court,  but  has  told  us 
of  the  manner  in  which  they  do-  bufinefs,  and  ex- 
preflfed  his  fears,  that  having  little  elfe  to  do,  they 
will  do  mifchief.  We  are  not  competent,  fir,  to  ex- 
amine, nor  ought  we  to  prejudge,  their  conduft. 
I  am  perfuaded  that  they  will  do  their  duty,  and 
prefume  they  will  have  the  decency  to  believe  that 
we  do  our  duty.  In  fo  far  as  they  may  be  bufied  with 
the  great  mifchief  of  checking  the  legiflative  or  ex- 
ecutive departments,  kn  any  wanton  iuvafion  of  our 
rights,  I  fliall  rejoice  in  that  mifchief.  I  hope,  in-, 
deed,  they  will  not  be  fo  bufied,  becaufe  I  hope  we 
fhall  give  them  no  caufe.  But  I  alfo  hope,  they 
will  keep  an  eagle  eye  upon  us,  left  we  fhould.  It  was 
partly  for  this  purpofe  they  were  eftabllfhed,  and ,  / 
truji,  that  when  properly  c&Ued  on,  they  tviil  dare  to 
a6l,  I  know  this  doftrine  is  unpleafant.  I  know  it  is 
more  popular  to  appeal  to  public  opinion,  that  equi- 
vocal tranficnt  being,  which  exifls  no  where,  and  < 
every  where.     But  if  ever  the  occafion  calls  for  it. 


133 

I  trufl:,  that  the  fuprcmc  coart  will  not  negleft  dol- 
ing the  great  mifchief  of  faving  this  couftitution 
which  can  be  done  much  better  by  their  delibera- 
tions, than  by  reforting  to  what  arc  called  revolu- 
tionary meafures. 

The  honourable  member  from  North-Carolina, 
fore  preft  by  the  delicate  fituation  in  which  he  is 
placed,  thinks  he  has  difcovered  a  new  argument  ii* 
favour  of  the  vote  which  he  is  inftrufted  to  give. 
As  far  as  I  can  enter  into  his  ideas,  and  trace  their 
progrefs,  he  feems  to  have  affumed  the  pofitioir 
which  was  to  be  proved,  and  then  fearched  through 
theconftitution,  not  to  difcover  whether  the  legifla- 
turc  have  the  right  contended  for,  but  whether,  ad- 
mitting them  to  pofTefs  it,  there  may  not  be  fome- 
thing  which  might  not  comport  with  that  idea.  I 
(hall  ftate  the  honourable  member*^s  argument,  as  I 
underftand  it,  and  ifmiftaken,  pray  to  be  correfted. 
He  read  to  us  that  claufe  which  relates  to  im- 
peachment, and  comparing  it  with  that  which  fixes 
the  tenure  of  judicial  office,  has  obferved,  that  this 
claufe  mud  relate,  folely,  to  a  removal  by  the  execu- 
tive power,  whofc  right  to  remove,  though  not  in- 
deed any  where  mentioned  in  the  conflitution,  has 
been  admitted  in  a  practice  founded  on  legiflativc 
conftruftion. 

That  as  the  tenure  of  the  office  is  during  good 
behaviour,  and  as  the  claufe  refpefting  impeachment 
does  not  fpecify  ??iis behaviour,  there  is  evidently  a. 
caufe  of  removal  which  cannot  be  reached  by  im- 


139 


peaclimcnt,  and  of  courfe  (the  executive  not  being 
permitted  to  remove}  the  right  mufl  neceflarily  de- 
volve on  the  legiilature.  Is  this  the  honourable 
member's  argument  ?  If  it  be,  the  reply  is  very 
fimple.  Afisbeba'ciour  Is  not  a  term  known  in  our 
lavi'.  The  idea  is  expreflcd  by  the  word  misdemea- 
nor ;  which  word  is  in  the  claufe  quoted  refpe^Ving 
impeachments.  Taking  therefore,  the  two  toge- 
ther, and  fpeaking  plain  old  Engliih,  the  cortftitU'- 
tion  fays  t  "  The  judges  fliall  hold  their  offices  (o 
Jong  as  they  fliall  demean  themfelves  well^  but  if  they 
lliall  misdemean,  if  they  (liall,  on  impeachment,  be 
convifted  of  misdemeanor^  they  fhall  be  removed. 
Thus,  fir,  the  honourable  member  will  find  that 
the  one  claufe,  is  jufl:  as  broad  as  the  other.  He  will 
fee,  therefore,  that  the  legiflature  can  affume  no 
right  from  the  deficiency  of  either,  and  will  find 
that  the  claufe  which  he  relied  on  goes,  if  rightly 
underflood,  to  the  confirmation  of  our  doftrine. 

Is  there  a  member  of  this  houfe,  who  can  lay 
his  hand  on  his  heart,  and  iay,  that  confidently 
with  the  plain  words  of  our  conllitution  we  have  a 
right  to  repeal  this  law  ?  I  believe  not.  And  if 
we  undertake  to  conftrue  this  conititution  to  our 
purpofes,  and  fay,  that  public  opinion  is  to  be  our 
judge,  there  is  an  end  to  all  conflitutions.  To 
what  will  not  this  dangerous  dodlrinc  lead  ?  Shoiild 
it  to-day  be  the  popular  wiih  to  deftroy  the  firft 
magiftrate,  you  can  deftroy  liim.  And  (hould  he 
lo-moiTow  be  able  \.o  conciliate  to  him  the  popular' 

T 


140 

will,  and  lead  the  people  to  wifli  for  your  dcftruc 
tion,  it  is  eafily  effected.  Adopt  this  principle,  and 
the  whim  of  the  moment  will  not  only  be  the  law, 
but  the  conftitution  of  our  country. 

The  gentleman  from  Virginia  has  mentioned  a 
great  nation  brought  to  the  feet  of  one  of  her  fer- 
vants.  But  why  is  (lie  in  that  fituation  ?  Is  it  not 
becaufe  popular  opinion  was  called  on  to  decide 
every  thing,  until  thofe  who  wore  bayonets  decid- 
ed for  all  the  reft.  Our  fituation  is  peculiar.  At 
prefect  our  national  compact  can  prevent  a  ftatc 
from  ading  hoftilely  towards  the  general  intereft. 
But  let  this  compact  be  deftroyed,  and  each  flate 
becomes  inilantancoufly  vcfled  with  abfolute  fove- 
reignty.  Is  there  no  inflauce,  of  a  fimilar  fituation, 
to  be  found  in  hiftory  ?  Look  at  the  ftates  of 
Greece.  They  were  once  in  a  condition  not  un- 
like to  that  in  which  we  fliould  then  fland.  They 
treated  the  recommendations  of  their  Amphiftionic 
Council  (which  was  more  a  meeting  of  ambaffadors 
than  a  Icgiilative  aflembly)  as  we  did  the  rcfolutions 
of  the  old  Congrefs.  Are  we  wife  ?  So  were 
they.  Are  we  valiant  ?  They  alfo  were  brave. 
Have  we  one  common  language,  and  are  we  united 
under  one  head  ?  In  this  alfo  there  is  a  flrong  re- 
femblance.  But,  by  their  divifions,  they  became  at 
firft  viftims  of  the  ambition  of  Philip,  and  were  at 
length  fwallowed  up  in  the  Roman  empire.  Arc 
we  to  form  an  exception  to  the  general  principles  of 
human  nature,  and  to  all  the  examples  of  hiflory  ? 


141 

And  are  the  maxims  of  experience  to  become  falfe, 
when  applied  to  our  fate  ? 

Some,  indeed,  flatter  themfelves,  that  our  defli- 
ny  will  be  like  that  of  Rome.  Such  indeed  it 
might  be,  if  we  had  the  fame  wife,  but  vile,  arifto- 
cracy,  under  whofe  guidance  they  became  the  maf- 
ters  of  the  world.  But  we  have  not  tliat  flrong 
ariftocratic  arm,  which  can  feize  a  wretched  citizen 
fcourged  almofl  to  death  by  a  remorfelefs  creditor, 
turn  him  into  the  ranks,  and  bid  him,  as  a  foldier, 
bear  our  eagle  in  triumph  round  the  globe.  1  hope 
to  God  we  Ihall  never  have  fuch  an  abominable  in- 
ftitution.  But  what,  I  afk,  will  be  the  fituation  of 
thefe  ftates  (organized  as  they  now  are)  if,  by  the 
diflblution  of  our  national  compaft,  they  be  left  to 
themfelves  ?  What  is  the  probable  refult  ?  We 
fhall  either  be  the  vi(ftims  of  foreign  intrigue,  and, 
fplit  into  factions,  fall  under  the  domination  of  a 
foreign  power ;  or  elfe,  after  the  mifery  and  tor- 
ment of  civil  war,  become  the  fubjeds  of  an  ufurp- 
ing  military  defpot.  What  but  this  compaft ! 
What  but  this  fpecific  part  of  it,  can  fave  us  from 
ruin  ?  The  judicial  power ;  that  fortrefs  of  the 
conftitution,  is  now  to  be  overturned.  Yes,  with 
honeft  Ajax,  I  would  not  only  throw  a  ihield  before 
it,  I  would  build  around  it  a  wall  of  brafs.  But  I 
am  too  weak  to  defend  the  rampart  againfl:  the  hoft 
of  affailants.  I  mufl:  call  to  my  afliltance  their  good 
fcnfe,  their  patriotifm,  and  their  virtue.  Do  not, 
gentlemen,  fuffer  the  rage  of  paffion  to  drive  reafon 


149 

from  her  Icat.  If  this  law  be  indeed  bad,  let  U5 
join  to  remedy  the  defcfts.  Has  it  been  pafl'ed  in  a 
manner  which  wounded  your  pride,  or  roufed  your 
refentment  ?  Have,  I  conjure  you,  the  magnani- 
mity to  pardon  that  ofTence.  I  intreat,  1  implore 
you,  to  facrifice  thofe  angry  pailions,  to  the  interelts 
of  our  country.  Pour  out  this  pride  of  opinion  on 
the  altar  of  patriotifm.  Let  it  be  an  expiatory 
libation  for  the  weal  of  America.  Do  not,  for 
God's  fake,  do  not  fuffcr  that  pride  to  plunge  us  all 
into  the  abyfs  of  ruin.  Indeed,  indeed,  it  will  be 
but  of  little,  very  little  avail,  whether  one  opinion 
or  the  other  be  right  or  wrong — it  will  heal  no 
wounds,  it  will  pay  no  debts,  it  will  rebuild  no  ra- 
vaged towns.  Do  not  rely  on  that  popular  will, 
wluch  has  brought  us  frail  beings  into  political  ex- 
illence  ?  That  opinion  is  but  a  changeable  thing. 
It  will  foon  change.  This  very  meafurc  will  change 
it.  You  will  be  deceived.  Do  not,  1  bcfeech  you, 
in  reliance  on  a  foundation  fo  frail,  commit  the  dig- 
nity, the  harmony,  the  exiflence  of  our  nation,  to 
the  wild  wini  Truil  not  your  treafure  to  the 
waves.  Throw  not  your  compafs  and  your  charts 
into  the  ocean.  Do  not  believe  that  its  billows 
will  waft  you  into  port.  Indeed,  indeed,  you  will 
be  deceived.  Call  not  away  this. only  anchor  of 
our  fafcty.  I  have  feen  its  progrefs.  I  know  the 
difficulties  through  which  it  was  obtained.  1  Hand 
in  the  prefence  of  Almighty  God,  and  of  the  world. 
I  declare  to  you,  that  if  you  lofc  this  charter,  never^ 


143 


no  never !  will   you  get  another.     Wc  are  now, 
perhaps  arrived  at  the  parting  point.     Here,  even 
hercy  we  iland  on  the  brink  of  fate.  Paufe,  then-4f\ 
Paufe — For  heaven's  fake — Paufe.  ^':\ 

Mr.  Breckenridge.  It  is  high  time,  Mr.  Prc- 
fident,  that  the  attention  of  the  committee  (hould  be 
again  called  to  the  real  merits  of  the  queftion  under 
dilcufTion.  We  have  wandered  long  enough,  with 
the  gentlemen  in  the  oppofition,  in  thofe  regions  of 
fancy,  and  of  terror,  to  which  they  have  led  us. 
They  muft  indulge  us  in  returning  and  purfuing  our 
object.  1 

I  cannot,  however,  in  juftice  to  my  feelings  go 
into  the  difcuflion,  without  making  fome  remarks 
on  the  manner  with  which  the  attempts  of  thofu 
who  are  in  favour  of  this  repeal  have  been  treated- 
It  has  been  echoed,  and  re-echoed  at  every  fe4-t 
tence,  that  we  are  attacking  a  law,  matured  by 
wildom,  and  upon  which  the  rights,  and  fccurity  of 
the  nation  depend.  That  we  are  about  to  demolifli 
the  principal  pillar  in  the  fabric  of  our  conflitution, 
and  thereby  diflblve  the  Union  :  and  we  are  polite- 
ly reminded  by  the  gentleman  from  Connecticut, 
that  the  Roman  government,  alio  once  the  favourite 
fabric  of  the  world,  funk  under  the  rude  Aroke  of 
Gothic  hands.  Without  inquiring  what  has  entitled 
thefe  honourable  gentlemen,  to  affume  to  ihem- 
felves  the  excluiive  guardianlhip  of  the  conflitution  ; 
and  without  inquiring  what  their  attachment  to  it 
is  J I  do  pretend,  fn-,  and  that  without  paying  to  nTj> 


144 

fdf  any  compliment,  that  ^reat  as  theirs  may  be, 
nine  is  not  lefs.  Gentlemen  may,  therefore,  for 
the  future,  fave  themfelves  the  trouble  of  attempting 
to  aroufe  my  fears  on  this  fubjcft,  when  I  once  for 
all  aflure  them,  that  my  duty  as  a  citizen,  and  my 
oath  as  a  Senator,  arc  more  operative  with  me,  than 
the  warning  voice  of  any  man,  or  fet  of  men,  from 
what  quarter  foever  it  may  come,  and  however 
high  the  pretenfions  to  experience  and  patriotifm 
are,  which  they  may  choofe  to  affume.  But  notwith- 
ftanding  my  anxiety  to  preferve,  inviolate  this  confti- 
tutiou,  I  am  not  to  be  diverted  from  my  objefV,  by 
every  tocfin  of  alarm,  which  gentlemen  may  think 
fit  to  found.  Let  me  not  be  told  of  dangers  to  the 
conflitution,  and  of  dangers  to  the  Union.  Contemp* 
tible,  indeed,  is  the  balls  on  which  that  conftitu- 
tion  reds,  poor  is  the  compliment  to  the  good  fenfe 
and  patriotifm  of  the  people  of  America,  if  that  con- 
flitution, and  their  liberties  can,  as  has  been  con- 
tended, be  fliaken  to  the  centre,  by  the  repeal  of  a 
lingle  law,  of  but  a  fmgle  year's  duration  ;  liifpicious 
indeed  in  its  origin,  burdenfome  and  ufelefs  to  the 
communiry,  and  aiFe£ling  fimply  a  few  individuals, 
interefted  againft  that  repeal,  by  paltry  pecuniary 
confiderations  only. 

I  (hall  commence  the  remarks,  I  am  about  to 
make,  by  a/king  a  fmgle  queflion,  which  applies  to 
all  the  obfcrvations  of  the  gentlemen  in  the  oppofi- 
tion.  Has  any  gentleman  fliewed,  or  attempted  to 
flicw,  that  the  iiicreafe  of  courts  and  judges,  by  this 


145 

law,  was  neceffary,  or  juftifiable,  from  the  ftate  of 
things  at  the  time  it  was  paiTcd  ?  They  have,  I  ad- 
mit, attempted  to  (hew,  by  reafoning  at  a  great  dif- 
tance,  that  they  may  be  wanting  hereafter,  that  our 
empire  is  large,  that  it  is  populating  fail,  and  that 
infurreftions  might  happen.  Indeed,  the  gentlemen 
in  the  oppolition  have  taken  different,  and  incon- 
fiftent  ground.  The  honourable  gentleman  from 
New-Hampihire,  venerable  from  his  years,  and  re- 
fpeftable  from  his  talents,  tells  us  this  law  was  not 
the  offspring  of  a  night,  but  has  been  well  matured. 
The  gentleman  from  Vermont,  requefts,  that  we 
may  not  proftrate  meafures  from  pique.  The  gen- 
tleman from  Maffachufetts  takes  different  ground, 
and  denies  the  power  of  Congrefs  to  repeal  the  law  : 
and  the  gentleman  from  Connecticut  fays,  that  the 
original  law,  cftabliihing  the  judiciary,  was  but  an 
exper'unent  ;  and  that  experience  is  the  only  fure 
teft  of  all  human  contrivances. 

Now  for  the  confidency  of  gentlemen.  Some 
contend  that  the  law  was  well  matured,  and  ought 
not  to  be  difpenfed  with.  Others,  th;it  we  cannot 
repeal  it  at  all,  whethel"  matured  or  ngt  well  ma- 
tured ;  and  others,  that  it  is  a  part  of  a  fyflem  of 
experiment.  ]f,  fir,  the  firft  law  was  an  experi- 
ment, this  law  is  of  courfe  an  experiment  upon  an 
experiment.  Now  for  the  reafoning  of  the  gentle- 
man from  Connefticut.  "  Experience  is  the  only 
fure  tefl;  of  all  regulations  ;'*  therefore,  you  m.ay 
make  an  experiment,  and  even  an  experiment  upon 


146 


an  experiment,  but  yet  thefe  experiments  are  unal- 
terable. This  is  really  an  original  notion  about  ex- 
periments J  that  you  may  try  them,  to  fee  if  they 
will  anfwer,  but  whether  they  do,  or  do  not,  they 
are  faftened  on  you. 

The  honourable  gentleman  from  Georgia,  could 
not  after  two  explanations  atone  to  the  gentleman  from 
Connefticut,  for  an  inadvertent  expreffion  dropt  by 
him  in  the  warmth  of  argument,  which  carried  an 
infmuation,  that  this  law  was  made  in  ■a.paffion.  Let 
the  gentleman  from  Connefticut,  therefol-e,  have 
it  as  he  flated  it,  that  the  law  pafled  with  great  cool- 
ness and  deliberation.  If  gentlemen  then  fuppofed 
it  was  to  be  an  irrepealable  experiment,  and  to  be 
entailed  on  their  country,  /  •will  say  it  was  a  wanton 
experiment.  I  will  fay  more :  It  was  an  experi- 
ment, which  inftead  of  being  juiliiied  by  afliadow 
of  nccefhty,  was  negatived  by  the  exHting  flatc  of 
things,  at  the  time  it  was  made  ;  and  that  it  was 
an  experiment  never  made  upon  earth  before,  to 
try  how  courts  and  judges  would  anfwer  without 
bufmefs.  The  abfurdity  moreover,  with  refpeft  to 
this  ftrange  do£lrine  of  irrepealable  experiments,  is 
increafcd,  becaufc  fome  gentlemen  admit,  that  you 
may  modify  and  change  the  law,  but  fo  as  not  to 
afFeft  the  judges.  I  underftand  them  then  on  that 
point  to  mean,  that  you  may  modify  and  change  the 
law  as  you  pleafe,  provided  you  increafe  the  num- 
ber of  judges,  or  the  expenfc  of  the  fyllcm  ;  but 
that  you  violate  the  conflitution,  if  you  diminifli  the 


147 

number  of  judges,  or  attempt  to  economize  the  fyf- 
tcm  ;  or  in  other  words,  it  is  conftitutional  to  abo- 
lifh  any  part,  or  all  of  the  fyftem  but  what  relates 
to  the  falary  part  of  it  :  which  in  plain  Englifh, 
would  be  "  do  what  you  pleafe,  gentlemen,  with 
our  fyflem  ;  but  spare,  oh  spare,  those  for  whom  the 
system  was  mack,  the  Judges.** 

The  gentleman  from  Mailiichufetts  afks  for  any 
inftance  of  an  attempt  fimilar  to  the  one  under  con- 
fideration.  If  he  meant  of  an  example  of  the  aboli- 
tion of  courts  and  judges,  which  had  become  un- 
necefTary,  I  refer  him  to  the  examples  of  Maryland 
and  Virginia,  already  cited  ;  States  compofedofone 
million  two  hundred  thoufand  inhabitants,  andcom- 
pofing  more  than  one-fifth  part  of  the  Union,  who 
have  each  exercifed  that  power.  i\n  inflance,  ex- 
aftly,  or  very  nearly  fimilar  to  the  one  under  confi- 
deration,  cannot,  I  fuppofe,  be  adduced ;  for  I 
would  aikhim  in  my  turn,  if  he  can  fhew  m.e  in  the 
Union,  or  the  univerfe,  an  inftance  of  a  fet  of  courts 
created  without  any  bufmefs  for  them  to  a6l  on  ; 
and  beneficial  to  the  judges  only  ? 

The  gentleman  from  MaiTachufetts  has  conce- 
ded a  point,  which  is  at  variance  with  the  principal 
ground  he  has  taken.  He  admits,  if  a  judge  in  a 
particular  dillric^l  be  incompetent  from  Infanity,  dif- 
ability,  or  other  fuiEcient  caufe  to  perform  his  du- 
ties, Congrefs  might  repeal  fo  much  of  the  law  as 
relates  to  his  diftrlft,  and  thereby  put  down  that 
judge.     How  is  this?  If  a  law  can  be  repealed, 

U 


148 

and  a  judge  put  down,  becaufe  he  Is  unable  to  dif- 
charge  the  duties  of  his  office,  cannot  a  law  be  re- 
pealed, and  a  judge  be  put  down,  where  he  has  no 
duties  to  difcharge.  If,  becaufe  a  judge  who  can- 
not difcharge  the  duties  aftually  affigned  him,  (al- 
though by  the  act  of  government)  may  be  difpenfed 
with,  is  it  found  reafoning  to  fay,  that  you  cannot 
difpenfe  with  a  judge,  although  you  have  aboliflied 
his  duties  ?  Again,  purfuing  the  gentleman's  own 
cafe,  \^ part  of  a  law  can  be  repealed,  and  a  parti- 
cular diftrift  and  judge  put  down,  what  is  it  that 
arrefts  your  power,  as  to  all  the  diftrifts,  and  the 
whole  corps  of  judges  ? 

[Here  Mr.  Jonathan  Mason  rofc  to  explain ; 
and  faid  the  gentleman  had  mifunderftood  him. 
The  idea  he  intended  to  convey  was,  that  if  Con- 
grefs  had  power  to  put  down  one  judge,  or  one  dif- 
tri(^,  they  had  the  power  to  put  down  all  the  courts 
and  judges,  but  that  they  had  no  power  to  do  ei- 
ther.] 

Mr.  Brec  KEN  RIDGE  faid,  he  wasforryhe  had 
mifunderflood  the  gentleman  j  he  had  fo  noted  his 
obfervation  ;  but  he  would  then  beg  leave  to  notice 
an  obfervation  of  the  gentleman  from  New -York  ; 
whicli  applies  to  this  part  of  the  fubjeft.  That  gentle- 
man has  admitted,  that  you  may  new  model  your 
courts  for  the  benefit  of  the  people  ;  but  you  cannot  af- 
fed  the  judges  ;  for  they  are  in  (to  ufc  his  expreflion^ 
under  the  conflitution  j  and  he  contends,  that  not 


149 

only  the  firll  fee.  of  the  3d  art.  is  imperative,  *but 
alfo  the  the  8th  fee.  of  the  firft  article,  which  gives 
Congrefs  the  "  power  to  conftitute  tribunals  inferior 
to  the  fupreme  court."  This  lafl  feftion  gives  to 
Congrefs  the  power  alfo  to  pafs  bankrupt  laws,  na- 
turalization Jaws,  tax  laws,  &c.  &c.  Are  all  thefe 
powers  imperative  alfo  ?  And  after  you  have  eftab- 
Jiflied  apoft  road,  pafled  a  bankrupt  law,  or  a  tax 
law,  are  they  all  irrepealable,  and  are  all  the  offi- 
cers created  by  them  all,  in  alfo  under  the  conflitu- 
tion  ?  The  fame  conftru^lion  applies  to  all ;  and 
{hews  them  all  to  be  discretional  powers.  But  this 
modification  is  to  be  for  the  benefit  of  the  people. 
Can  it  be  for  the  benefit  of  the  people,  never  to  abo- 
lifli  courts  ?  Two  inftances  have  been  ahead  y  cited. 
And  what  principle  is  it,  which  ought  folely  to  ac- 
tuate legiflators,  in  ena£ling,  modifying,  or  repeal- 
ing any  law,  but  the  good  of  the  people  i^  Gentle- 
men really  argue,  as  if  they  confidered  courts  made 
for  thejudges,  and  not  for  the  people. 

Suppofe  this  fubje£l  could  be  difcufifed  by  the 
people  and  the  judges,  what  would  be  the  language 
of  each.  The  people  would  fay,  thefe  additional 
courts  are  totally  ufelefs.  The  judges  would  reply, 
(if  they  hold  the  fame  opinions,  that  the  gentlemen 

*  It  will  be  observed,  that  Mr.  Breckenridge  riust  have  mis- 
taken entirely  what  was  said  by  Mr.  ^'torri3,  lor  this  gentleman 
had  not  noticed  the  8th  sedion  of  the  ist  article,  either  in  his 
speech  of  the  8th,  to  which  this  is  an  answer,  or  in  that  made  this 
day,  of  wh.ich  Mr.  Breckenridge  takes  no  notice.  The  reason 
for  making  the  mistake  is  obvious. 


150 

in  the  oppofition  do)  that  they  are  not  ufelefs,  lor 
they  tend  to  infpire  terror,  and  keep  men  honefl: : 
The  people  allege  there  is  no  bufinefs  for  them  to 
tranfaft  :  'J'he  judges  anfwer,  that  the  country  is 
increafing  fafl  in  population,  and  there  *zt77/ ^f  bufi- 
nefs, perhaps,  bye  and  bye  :  The  people  contend 
they  ought  not  to  incur  an  expenfe,  without  fome 
advantage  :  Their  honours  reply,  it  amounts  to  but 
one  cent  a.  map,  and  is  not  worth  growling  about  : 
The  people  ho\vever  declare  their  determination  to 
aboiifh  thefe  courts,  as  things  for  which  they  have 
no  ufe  :  The  judges  then  reply,  in  the  language  of 
the  gentleman  from  New- York,  "  You  are  a  den 
of  robbers^  your  conftitution  is  gone,  and  all  men 
will  fly  your  Ihores.'* 

The  gentleman  from  Maffachufetts  admits,  the 
Prefident  has  power  to  remove,  at  pleafure,  all  offi- 
cers appointed  by  him,  but  the  judges  j  but  does  not 
fee  the  force  of  my  application  of  it.  I  apply  it  in 
this  way :  Although  thofc  officers  have  a  right  to 
hold  their  offices  at  the  will  of  the  Prefident,  and 
the  legiflature  cannot  remove  them  during  the  conti- 
nuance of  their  offices,  yet  the  legiflature  can  re- 
move without  the  will  of  the  Prefident,  by  abolish- 
ing their  offices.  In  cafe,  for  example,  the  excifc 
law  is  repealed,  what  wiil  become  of  the  fu- 
pervifors,  and  other  officers  created  by  that  law  ? 
They  will  go  out  with  the  law  j  for  an  extinguifli- 
ment  of  their  duties  will  neccffiarily  carry  with  it  an 
cxtin^ion  of  their  offices,  whether  the  Prefident 
wills  it  or  not. 


151 


But  a  judge  ftands  on  more  independent  ground. 
He  fliall  not  be  removed  at  the  will  of  the  Prefident, 
nor  be  ftarved  out  by  the  legiflature.  He  fhall  be 
removed  from  the  exercife  of  his  duties,  for  mifbe- 
haviour  only,  whilst  exercising  thofe  duties  :  and 
during  the  continuance  of  his  office,  or,  in  other 
words,  his  duties,  the  legiflature  fliall  not  diminiih 
the  confideration  annexed  to  thofe  duties.  His  in- 
dependence and  honefty  in  office,  therefore,  arc 
fufficiently  fecured  againft  executive  or  legiflative 
influence. 

But  the  gentleman  from  New- York  has  racked 
his  very  fertile  imagination  to  render  familiar  to 
us  by  comparifons  this  wonderful  and  unprece- 
dented thing  ;  an  officer  without  an  office,  a  judge 
without  a  court,  without  duties,  or  without  autho- 
rity. He  has  likened  him  to  a  bridge,  to  a  boat, 
to  the  national  debt,  and  to  an  eight  per  cent, 
ufurer.  I  will  Ipare  your  gravity,  and  that  of  the 
committee,  by  refraining  to  examine  the  fimilitude 
as  to  the  firft  two  obje£i:s.  What  likenefs  is  there 
between  the  falary  of  a  judge,  and  the  national 
debt  ?  The  national  debt  is  a  iiested  right  j  a 
j-ight  not  accruing  for  fervices  which  may  be  render- 
ed, but  for  fervices,  or  money,  actually  rendered  or 
advanced.  It  is  a  debt,  the  confideration  for  which 
we  have  acknowledged  to  have  received,  and  for 
the  difcharge  of  which  we  have  pledged  ourfelves. 
It  is  a  debt  we  are  undet  moral  obligations  to  pay, 
having  previoufly  received  from  the  creditors,  its 


152 

equivalent.  How  (lands  the  cafe  of  the  falary, 
which  is  faid  to  be  appofite  ?  Is  that  a  vefled  right  ? 
Is  that  a  debt  for  which  the  community  have  re- 
ceived an  equivalent  ?  It  is  neither.  It  is  a  debt 
which,  from  its  nature,  the  public  faith  cannot 
fland  pledged  to  pay,  except  fo  far  only  as  the  fer- 
vices  aftually  performed,  require  ;  it  being  depen- 
dent in  its  very  creation  on  fcrvices  to  be  performed, 
and  which  may  be  difpenfed  with  when  they  arc 
no  longer  wanted. 

Is  the  cafe  of  the  eight  per  cent,  ufurer  more 
tppollte  ?  If  the  occafions  of  men  induce  them  to 
refort  to  the  hoards  of  ufurers,  it  is  a  voluntary  aft ; 
they  know  its  intent  and  confequences,  and  they 
ought,  in  juftice,  to  be  bound  by  their  contract. 
Although  Shylock  may  not  be  entitled  to  his  pound 
of  flefli,  yet  he  is  entitled  to  his  ufury  aiid  interefl. 
And  the  cafe  of  the  petty  ufurer  (lands  on  the  fame 
ground,  with  all  thofe  important  ufurers,  who 
loaned,  at  eight  per  cent,  their  money  and  (lock  to 
the  United  States,  during  her  late  preparations  to 
fight  the  French. 

.  The  gentleman  from  New- York  expre(res  his 
utter  aftoniflimcnt  at  the  idea  of  judges  and  courts 
being  too  numerous  j  and  refers  us  to  the  example 
of  yUfred,  whofe  courts  and  judges  were  fo  nume- 
rous and  well  organized,  and  had  impofed  fuch 
terror  into  his  kingdom,  that  a  purfe  of  gold  might 
lay  in  fafety  on  the  high-way.  I  remember  reading, 
long    (incc,  of  thefe  hundred   courts,  courts  leet, 


153 

courts  baron,  &c.  and,  if  1  am  not  miftaken,  fir,  he 
had  a  court  o^ chivalry  too,  of  much  about  the  fame 
value  and  advantage  in  his  kingdom  as  your  addi- 
tional courts  are  here.  But,  if  the  gentleman  me- 
ditates fuch  extenfion  and  perfe£t:ion  in  our  judicial 
fyftem,  why  not  refort  to  the  fountain  head,  and 
take  example  from  Moses ^  who  is  certainly  higher 
authority.  He,  fir,  eftabhihed  his  rulers,  or  judges, 
of  thoufands,  of  hundreds,  of  fifties,  and  of  tens  ; 
and  men  too,  fays  the  book,  hating  co'oetousness  ; 
that  is,  I  prefume,  having  no  falaries.  But  I  take 
it,  that  both  Alfred  and  Mofes,  had  a  wider  range 
in  legiflation  than  this  Senate,  and  therefore,  their 
regulations  cannot  be  very  applicable. 

The  gentlemen,  both  from  New -York  and  Con- 
nefticut,  have  prefled  upon  us  the  policy  of  increaf> 
ing  courts  and  judges,  to  prevent  crimes  and  wrongs, 
to  proteft  the  weak  againft  the  ftrong,  and  infure 
virtue  and  humanity  among  the  people.  I  deny 
both  the  propofition  and  inference  drawn  from  it,  in 
the  extent  contended  for.  From  whence.  I  alk,  do 
gentlemen  draw  their  authority  for  fuch  extenfivc 
legiflation  ?  From  whence  arifes  their  power  to 
pafs  thefe  laws,  to  prevent  crimes,  to  proteft  the 
weak  againft  the  ftrong,  and  to  punifh  the  guilty  ? 
Not  from  the  conftitution,  I  will  fafely  affirm  ;  for, 
under  it,  but  three  or  four  fpecies  of  crimes  are 
puniftiable  by  federal  laws  :  to  wit,  treafon,  pira- 
cies, and  felonies  on  the  high  feas,  offences  againft 
the  laws  of  nations,  and  counterfeiters  of  the  fecuri- 


154 

ties  or  coin  of  the  United  States.  Thcfe  conftitute 
their  powers  0:1  the  fubje^l  of  criminal  jurifpru- 
dence,  and  are  the  fum  total  of  our  powers,  wricten 
or  unwritten  ;  unlefs,  indeed,  the  gentlemen  draw 
fome  of  their  authority  for  their  extenfive  notions 
of  legiflaxion,  from  the  lex  non  icripta  of  Alfred's 
country,  which,  I  am  told,  fome  gentlemen  confider 
as  attaching  itfelf  to  our  conftitution.  But,  admit- 
ting the  propofition  to  be  true,  is  the  conclufion 
drawn  from  it  well  founded,  that  a  multiplicity  of 
courts  and  judges  infpire  terror,  and  prevent  litiga- 
tion and  the  commilHon  of  wrongs.  I  coufefs  I  am 
now,  for  the  firfl:  time,  to  learn,  that  to  infpire 
terror,  and  prevent  wrongs,  you  ought  to  embody 
an  army  of  judges ;  and  that  to  fupport  or  difcou- 
rage  litigation,  you  ought  to  embody  another  fet 
of  men,  their  general  attendants,  called  lawyers, 
who,  it  feems,  for  the  firfl:  time,  are  to  become 
peace-makers ;  who,  with  their  robes  and  green 
bags,  will  flrike  fuch  terror  into  the  nation,  that  a 
purfe  of  gold  may  hang,  in  fafety,  by  the  high-way. 
Halcyon  days  thcfe,  indeed,  which  are  promifed 
from  a  continuance  of  thefe  judges  ;  and  if  not 
vifionary,  I  could  then  anfwer  the  gentleman  from 
MalTachufetts,  in  the  affirmative,  that  the  millenium 
was  indeed  approaching. 

The  ncccffity  for  numerous  courts  and  judges  is 
alfo  infilled  on,  by  fuggeftions  that  foreign  inva- 
iions  may  happen,  and  that  infurreftions  may  alfo 
happen  j   that  confequenily  great  revenues  will  be 


155 

wanting,  and  confequcntly  numerous  courts  to  en- 
force their  colleftion.  This  is  rcafoning  at  a  very 
great  diftancc  indeed  from  the  fubje£!,  to  prove  its 
utility.  But  I  am  willing  to  indulge  the  gentlemen 
and  admit,  that  invalion  will  happen,  and  annually, 
if  he  chufes,  and  infurre£tions  quarterly  j  I  will 
then  contend,  that  until  the  population  of  America 
amounts  to  five  times  the  prefent  number,  we  (hall 
not  Hand  in  need  of  as  many  judges  as  there  now 
are,  to  adminiiler  juftice  on  all  the  fubjefts,  which 
can  rightfully,  under  the  prefent  conftitution,  be 
carried  to  federal  adjudication. 

The  gentleman  from  New- York  has  favoured 
us  with  another  argument  on  this  head,  not  adreff- 
ed  to  the  fears,  but  to  the  pride  of  the  people,  and 
aflcs  if  the  paltry  additional  expenfe  ought  to  have 
any  weight,  when  it  cannot  amount  to  more  than 
one  cent  a  man.  I  anfwer,  fir,  that  one  cent  a  man 
will  not,  to  be  fure,  opprefs  the  people  j  but  this  is 
a  very  unfair  way  of  appeahng  to  the  ability  of 
the  people,  by  ihewing  them  among  the  thoufand 
items  which  compofe  the  aggregate  of  their  bur- 
dens, what  each  man's  proportion  is  of  one  very 
fmall  item.  But  as  that  honourable  gentleman  has 
told  us,  "  that  he  confiders  the  government  refting 
on  the  reafon  of  man,  as  a  foleciim,"  I  fliould  fup- 
pofe,  with  due  deference  to  him,  that  the  better 
way  would  be,  to  govern  this  machine  man,  to  in- 
creafe  the  army,  rather  than  the  judiciary.  Twenty 
thoufand  regulars,  properly  difpofed  of,  would  make 

X 


156 

us  as  honcft  as  Alfred's  fubjefts,  and  would  coft  ns 
only  three  or  four  dollars  a  head.  This,  too,  is  a 
kind  of  terror  familiar  in  countries  like  Alfred's : 
but  an  army  of  judges  is  a  new  experiment,  as  we 
have  been  told  this  law  is ;  and  was  referved  for 
the  politicians  of  thefe  our  enlightened  times. 

Much  has  been  faid  about  the  hardfhip  which 
will  arife  to  judges,  who  have  quitted  lucrative  em- 
ployments, and  taken  feats  on  the  bench,  confidcr- 
ing  them  as  permanent  provifions.  One  gentleman 
defcribes  them  as  a  venerable  fet  of  men,  bending 
under  the  weight  of  years,  and  not  pofTeffing  the 
agility  of  poft-boys ;  another,  as  men  who  have 
been  induced  to  abandon  the  aftive  and  lucrative 
purfuits  of  the  law.  Take  them  as  pourtrayed  by 
cither  gentleman.  If  they  are  men  of  the  firft  de- 
fcription,  there  can  be  little  hardfhip  in  permitting 
them  to  return  to  that  ftate  of  tranquillity  and  re- 
tirement from  which  they  muft  have  been  no  doubt 
reluftantly  drawn  ;  and  to  which  their  age  and  in- 
firmities muft:  again  invite  their  return.  If  they  arc 
men  of  the  laft  defcription,  can  they  not  readily  re- 
turn to  thofe  fame  a^live  and  lucrative  purfuits 
which  they  had  quitted  ?  Have  their  talents  and 
faculties,  for  the  purfuits  of  which  they  were  bred, 
been  palfied,  by  a  feat  for  a  fingle  year  on  the 
bench  ?  And  can  that  fingle  year's  derangement 
of  their  affairs  be  retributed  only  by  a  penfion  of 
two  thoufand  dollars  a  year  for  life  ?  Such  calcula- 
tions and  demands  muft  illy  comport  with  the  cha- 


157 

rafter  of  thofe  of  the  firfl:  defcription  ;  and  they  are 
poor  compliments,  indeedj  to  the  talents,  legal. ac- 
quirements, and  legal  (landing  of  the  fecond.  But 
is  there  no  hardfhip  on  the  fide  of  the  community  ? 
Is  it  enough  for  them  to  be  told  by  thefe  judges, 
true  it  is  you  have  cflabliflied  an  ufelefs  fet  of 
courts ;  but  we  have  been  lucky  enough  to  get  into 
ollice,  the  conititution  protefts  us  there,  and  get  us 
out  if  you  can  ?  I  doubt,  fir,  this  reafoning  would 
not  be  fatisfaftory  to  men  poffeifing  common  ho- 
nefty,  and  the  ordinary  notions  of  right  and  wrong. 
It  would  not,  however,  be  taken  as  a  fatisfaftory  fet 
o£F  againft  the  fifty  thoufand  dollars  annually. 

The  gentleman  from  New- York  has  contended 
flrongly  againft  an  idea,  which,  he  apprehends  is 
entertained  of  increafing  the  power  and  influence 
of  the  ftates,  by  leflening  your  federal  courts. 

I  hold  out  no  fuch  idea.  It  was  a  furmife  of 
the  gentleman.  I  wifli  the  federal  government  to 
poflefs  and  exercife  all  its  rightful  powers,  but  no 
more.  I  wifli  the  ftates  alfo,  to  be  left  in  the  exer- 
cife of  theirs.  I  do  not  wifti  to  fee  every  thing  va- 
luable extrafted  from  them.  I  do  not  wiih  to  fee  all 
pofilble  fubje^ts  drawn  into  the  great  vortex  of  fe- 
deral legiflation  and  adjudication.  I  do  not,  in  ftiort, 
wifli,  as  fome  gentlemen  may  do,  to  see  one  mighty 
consolidated  sovereignty  colleded  from  and  erected  on 
the  ruins  of  all  the  state  sovereignties. 

It  is  now  growing  late,  and  the  committee  muft 
be  fatigued  j  I  will  trefpafs  very  little  longer  on  them. 


158 

Many  of  thc'obfervatlons,  which  I  have  anfwered, 
were,  it  is  true,  very  foreign  and  irrelevent  to  the 
fubjcft.  They  were,  it  is  true,  but  the  gleanings, 
as  the  gentlemen  who  have  preceded  me  left  little 
for  me  to  anfwcr. 

But  permit  me,  for  a  fingle  moment,  to  draw 
gentlemen's  attention  to  the  real  merits  of  this  quef- 
tion,  and  afk,  have  the  arguments  been  fairly  and 
fatisfa£lorily  anfwered  by  the  gentlemen  in  the  op- 
pofition  ;  arguments  which  went  to  the  many  diffi- 
culties and  abfurdities  which  would  grow  out  of  the 
conllitution,  under  the  conftruftion  againll  which  I 
contended  ;  which  went  to  fhew,  that  the  conftitu- 
tion  could  only  be  fairly  and  rationally  conflrued  to 
fecure  the  independency  of  a  judge  in  office,  dur- 
ing the  continuance  of  that  office  j  which  went  to 
Ihew,  that  the  power  of  Congreft,  to  ereft  inferior 
courts,  was  difcretional,  and  was,  therefore^  neccf- 
farily  accompanied  by  the  power  to  abolifli  them  ; 
that  by  the  condrudion  contended  for,  Cnerure  of- 
fices for  life  would  be  erefted  under  the  conflitu- 
tution  ;  that  the  abfurdity  of  an  officer  without  an 
office,  would  exifl: ;  that  the  power  of  legifiation  on 
judicial  fubje6ls  would,  in  elTecft,  be  arrefted,  in- 
deed deflroyed ;  and  that  it  would  produce  the  ex- 
traordinary phenomenon  in  our  government  of  an 
officer  not  amenable  to  your  laws,  to  your  conftitu- 
tion,  or  to  the  i>eople  themfelves  ?  I  appeal  to  gen- 
tlemen, if  thefe  have  been  fairly  and  fatisfaftorily 
anfwered  ? — They  have  not. 


X59 

After  Mr.  Breckenridge  concluded,  the 
houfe  adjourned  to  the  next  day,  Friday  the  fif- 
teenth. The  Vice-Prefident  of  the  United  States 
attending,  Mr.  Baldwin  who  had  been  Preiident 
pro  tempore,  opened  the  debate.  He  obferved 
that  in  the  feat  with  which  he  had  been  honoured 
by  the  Senate  during  the  preceding  part  of  this  de- 
bate, his  duty  had  obliged  him  to  pay  particular 
attention  to  gentlemen  who  rofe  to  offer  their  opi- 
nions :  he  had  felt  himfelf  pleafed  and  inllru£led 
by  one  of  the  mod  luminous  difcufHons,  in  both 
views  of  the  queflion,  that  he  had  ever  witnefTed, 
which  he  hoped  and  trufled  would  guide  the  Senate 
to  a  ufeful  and  proper  refult.  In  this  late  ftagc  of 
the  debates  it  could  not  be  expected  of  him  to  be 
able  to  contribute  any  thing  new  or  important. 
But,  as  gentlemen  had  fo  generally  thought  proper 
to  esprefs  their  opinions,  he  would  not  withhold  a 
public  declaration  of  his  own. 

He  thought  the  range  of  this  queflion,  and  the 
field  of  argument  had  been  made  more  extenfive 
than  ftridly  related  to  the  queflion ;  but  they 
might  be  ufeful,  in  leading  to  a  final  determination 
on  the  fubjeft  of  the  refolution  now  under  corifider- 
ation.  The  remarks  that  had  been  made  of  impro- 
per motives  and  defigns,  on  the  one  fide  and  on 
the  other,  either  that  there  was  an  intention  to 
urge  forward  the  powers  of  the  government,  till  it 
was  carried  altogether  beyond  its  principles^  or  that 
there  was  an  inveterate  fyftem  of  oppofition  to  it. 


which  fought  nothing  lefs  than  its  overthrow,  he 
fhould  take  no  notice  of,  as  they  had  already  been 
extended  farther  than  he  had  wiflied.  His  refpeft 
for  worthy  gentlemen,  with  the  greater  part  of 
whom  he  had  fo  long  laboured  in  our  public  coun- 
cils; his  refpeftfor  the  people  whom  they  reprefcn- 
ted,  and  for  the  State  Legiflatures  who  had  on  this 
occafion  preferred  them  to  their  fellow-citizens,  it  is 
to  be  prefumed,  from  full  experience  of  their  talents 
and  virtues,  forbade  him  to  entertain  any  doubt  of 
their  defire  to  promote  the  beft  interells  of  their 
country,  and  to  preferve  our  excellent  conflitution, 
which  they  are  all  fworn  to  fupport.  If  at  any 
time  obfervatious  different  from  thefe  cfcaped 
him,  he  hoped  they  would  be  conlidered  as  rhe  fug- 
geftions  of  his  own  infirmity,  and  not  the  refult  of 
deliberate  refle^^ion.  His  own  general  opinion  on 
fuch  fubjefts  was,  that  it  is  the  nature  of  all  delega- 
ted power  to  increafc :  it  has  been  very  aptly  faid, 
to  be  like  the  fcrew  in  mechanics  ;  it  holds  all  it 
gains,  and  every  turn  gains  a  little  more  ;  the  power 
keeps  conftantly  accumulating,  till  it  becomes  abfo- 
lutely  infupportable,  and  then  falls  in  ruins  in  a. 
tremendous  crafli,  and  the  accumulation  begins 
again  ;  fo  that  the  hiftory  of  civil  fociety  is  but  a 
general  view  of  thefe  vail  waves  following  each 
other  oftentimes  in  dreadful  fucceifion.  That  this 
was  the  tendency  of  fociety,  he  thought  appeared  in 
fome  meafure  from  our  own  fliort  hiflory,  whether 
viewed  in  relation  to  our  flatc  or  federal  govern^ 


161 

mcrit^  ;  fcvcral  of  them  had  already  made  conlider- 
able  advancerm  this  courfe ;  he  knew  of  none  of 
them  that  had  declined.      Though  he  hoped  and 
trufted,  that  this  fatal  progreflion  would  be  flower 
in  our  country,  than  it  had  ever  been  before  on  the 
face  of  the  earth,  and  that  it  would  allow  to  us  ma- 
ny ages  of  great  political  happinefs,  yet  he  did  not 
expeft  it  would  be  found  in  the  end  to  be  an  excep- 
tion to  his  general  remark.    He  alluded  to  feveral 
inflances  in  the  federal  government,  and  obferved 
generally,    that  as  we  were  now  in  the  thirteenth 
year,  under  the  prefent  conftitution,   as  we  had 
been  thirteen  years  under  the  old  fyflem  of  the  ar- 
ticles of  confederation,   he  thought  it  ufeful  in  our 
rejfleftions  to  make  a  comparifon  between  them  :  du- 
ring the  firft  period    of  thirteen  years,  the  federal . 
government,  as  it  was  called,  poiTelfed  neither  legifla- 
tive,  nor  judicial  power,  nor  any  revenue  at   all ;. 
they  were  not  able  even  to  form  their  own  body,  by 
compelling  the  attendance  of  their  members  j  they 
attended  or  were  abfent,   as  they  pleafed.     Their 
ideas  of  the  encroachments  that  it  was  neceffary  to 
make  on  the  powers  that  were  then  in  the  poireffioa 
of  the  Hate  governments  appeared  to  have  been 
very  different  from  ours  ;    they  carried  on  a  long' 
andobfliinate  war,  andas  they  fuppofed,  had  nearly  fi- 
niflied  a  fettlement  of  their  accounts ;  and  yet  there 
was  much  lefs  complaint  of  a  want  of  power,  unea- 
fmefs  and  ftruggles  for  more,  at  the  clofe  of  that 
£rft  period  of  thirteen  years,  than  at  the  prefent 


162 

time.  He  fliould  not  enlarge  on  tliis  view  of  the 
fubjcft  ;  when  he  faw  that  he  was  fpcaking  in  the 
aflembly  of  the  mod  ancient  flatefmen  of  our  coun- 
try, he  knew  that  though  he  barely  glanced  at  the 
ideas,  thtir  own  recollections  would  prefent  them  in 
all  their  extent.  The  obfervations  that  had  been 
before  made  by  gentlemen  on  this  view,  had  been 
fo  general,  that  he  could  only  meet  and  qualify  them 
by  other  general  obfervations :  he  thought  they 
did  not  furnifh  a  foundation  to  apprehend  an  over- 
throw of  the  government. 

The  refolution  now  under  confideration,  pro- 
pofes  to  reconfider  and  repeal  the  newjudiciary  law 
pafTed  lad  feffion  ;  it  does  not  follow,  that  this  is  an 
eifort  of  a  general  plan  of  deflrudion,  as  applied  to 
our  federal  government :  all  public  bodies  mufl  at 
feme  times  renew  their  own  proceedings ;  while 
the  maxim  remains  true,  that  it  is  the  lot  of  human 
nature  to  err,  this  mufl:  be  the  cafe  ;  parliamenta- 
ry aflemblies  have  provifions  for  reconfidering  their 
queftions,  and  courts  of  juflice  for  granting  new 
trials. 

The  firfl:  and  mofl  natural  fource  of  argument 
that  prefents  itfelf  on  fuch  occafions  is  the  circum- 
ftances  in  which  the  aft  took  place  ;  to  enquire 
whether  there  was  any  furprize  or  unfaimefs,  not 
according  to  principle  and  cuftomary  form.  Gen- 
tlemen have  had  the  candour  feveral  times  to  ac- 
knowledge, and  it  was  very  frefh  in  his  own  recof- 
leftion,  that  this  was  the  cafe  on  the  paflage  of  the 


163 

law,  which  the  motion  propofes  to  repeat ;  that  it 
was  verily  believed  at  the  time,  not  to  poffdfs  an 
aftual  majority  of  the  votes  of  the  other  houfe,  and 
therefore,  every  propofed  amendment  was  rejected 
by  its  friends  in  the  Senate,  as  they  did  not  confider 
it  fafe  to  fend  it  back  open  to  any  queftion  in  the 
Houfe  of  Reprefentativcs»  JHe  inftanccd  the  propd- 
fed  amendment  to  Itrike  out  Bairdftown,  the  place 
fixed  by  the  l.iw  for  the  court  in  Kentucky,  which 
was  acknowledged  to  be  a  proper  amendment,  and 
afterwards  introduced  in.  a  fupplemental  law  ;  he  faid 
he  was  himfelf  now  acting  under  an  imprellion  that 
that  law  never  did  unite  here  in  its  favor  an  aftual 
majority  of  votes,  according  to  the  rules  of  the  Se- 
nate and  of  the  conftitution.  He  then  read  the  rule 
of  the  Senate  which  forbids  a  fenator  to  vote  on  a 
queftion  where  he  is  interefted,  and  a  claufe  in  fec- 
tion.6,  article  I.  of  the  conftitution,  which  prohibits 
a  fenator  or  reprefentative  from  making  an  olEce  to 
hold  it  himfelf :  he  referred  alfo  to  the  fettled  prin- 
ciple in  the  inveftigation  of  truth,  that  a  perfon's 
relation  of  a  common  matter  of  fa6f  in  a  queftion  of 
a  few  fhilliugs  value,  could  not  be  rehed  on,  if  he 
had  even  a  remote  intereft  in  the  refalt  of  it.  He 
hoped  his  alTurances  would  be  accepted,  that  he  did 
not  make  thefe  remarks  to  excite  any  unpleafant 
fenfations  ;  he  wifhed  to  avoid  them  ;  he  touched 
them  as  flightly  as  he  could,  giving  them  their 
proper  place  in  the  ai-gument ;  he  was  fenfible  they 
did  Dot  prove  that  law  to  be  a  bad  one  ;  but  they 

y 


164 

formed  the  firfl  and  the  ftrongeft  reafon  why  the 
fubjeft  {hould  be  reconfidered,  which  was  the  main 
objeft  of  the  prefent  motion  ;  for  it  was  open  to  all 
amendments  in  its  progrefs. 

Another  obvious  fource  of  argument,  he  faid, 
on  this  queflion  of  repeal,  is  the  comparative  merit 
between  this  new  judiciary  Jaw,  and  the  old  one, 
which  will  be  reflored,  if  this  is  repealed,  with  fuch 
other  provifions  as  may  be  thought  neceffary. 
The  whole  of  the  difcuflion  at  the  laft  fefTion,  was 
on  this  ground ;  it  is  familiar  to  u*  all ;  it  was 
then  ample  and  convincing,  fo  as  to  produce  the  ef- 
fe(ffc  which  has  been  acknowledged  ;  no  doubt  it 
would  do  the  fame,  if  repeated  at  tliis  time  ;  it  is 
to  be  prefumed  the  effcft  of  it  is  not  lort: ;  to  pur- 
fue  it  in  all  its  detail  on  this  occafion,  would  make 
the  difcuihon  altogether  too  prolix  and  tedious. 
There  were,  however,  two  or  three  points  in  the 
comparifon  he  begged  leave  a  little  to  dwell  upon. 
Firft.  In  taking  a  general  look  at  the  two  fyftcms, 
the  ftrongefl  point  of  diftinftion,  which  feizes  the 
firft  view,  is,  that  in  the  old  fyflem  the  fame 
judges  hold  the  fupreme  court  here  and  a  court  in 
each  of  the  dates,  with  the  exception  of  the  ftates 
over  the  mountains ;  in  the  new  fyftera,  now  propo- 
fed  to  be  repealed,  this  is  not  the  cafe  ;  the  courts 
in  the  feveral  ftates  are  held  by  different  judges. 
This  had  ever  appeared  to  him  a  radical,  and  vi- 
tal failure  in  the  new  fyftcm  ;  it  deprives  the  judg- 
es of  the  opportunity  of  a  full  knowledge  of  local 


165 

laws  and  ufages,  and  deftroys  the  poflibility  of  uni- 
formity:  it  is  alfo  a  main  artery  of  healthful  circula- 
tion in  the  body  politic.  In  giving  a  fatisfaftory 
adminiftration  of  a  government  over  a  country  of 
this  vaft  extent,  the  great  objeft  mud  be  to  avoid 
the  necellity  of  dragging  the  people  from  the  re- 
mote extremes,  the  diftance  of  thoufands  of  miles, 
to  the  feat  of  our  government,  or  far  from  their 
homes,  where  they  cannot  have  the  ufual  advan- 
tages in  courts  of  juftice.  "While  two  of  the  judg- 
es of  the  fupreme  court,  held  a  court  in  each  ftate, 
this  was  almoft  entirely  avoided,  except  in  fome  of 
the  largefl  flates.  The  fuits  were  rarely  determined  at 
the  firfl  court ;  at  the  fecond  court  the  judges  were 
confidered  as  bringing  the  fenfe  of  the  fupreme 
court  on  the  fubjeft  ;  it  feemed  to  give  as  fatisfac- 
tory  a  concluflon  to  the  bufinefs,  as  if  the  parties 
had  been  themfelves  before  the  fupreme  court. 
Though  gentlemen  all  appear  to  fubmit  to  the  force 
of  this  argument,  yet  they  fuppofe  they  defeat  it 
by  the  vague  and  general  declamation,  that  expe- 
rience has  proved  it  to  be  imprafticable  j  that  we 
fliould  have  no  more  venerable  judges  ;  that  men 
muflbe  appointed  for  their  agility  rather  than  their 
wifdom,  &c.  He  averred  experience  had  determin- 
ed no  fuch  thing ;  very  venerable  judges  had  gone 
through  that  duty  from  the  beginning  of  the  go- 
vernment, without  any  apparent  injury  to  their  con- 
ftitutions,  with  as  few  refignations  as  ordinarily 
take  place  among  ftatcjudges,  and  in  fa6l,  with  lefs. 


166 

bodily  labor  than  is  required  of  many  members  of 
Congrcfs  for  a  much  fmailer  compenfatien ;  he 
thought  experience  proved  that  men  equal  to  the 
labor,  and  alfo  well  fitted  for  the  office,  might  be 
found,  rather  than  give  up  fo  indifpenfible  a  pro- 
vifion,  efpecially  as  under  the  prefent  motion,  addi- 
tional provifions  may  be  made  to  render  the  fyflem 
more  practicable  and  lefs  laborious.  The  change 
that  had  been  made  was,  no  doubt,  a  great  relief 
to  the  judges  j  but  we  have  other  and  more  nume- 
rous conftituents  whofe  relief  muft  alfo  be  attended 
to. 

2.  Another  ftrong  point  in  the  comparative 
view  of  the  two  fyfleras  is,  that  the  new  law,  now 
propofed  to  be  repealed,  attempts  to  draw  off  more 
bufinefs  from  the  ftate  courts  to  the  federal  courts. 
When  gentlemen  talk  of  expediency,  may  they  not 
be  a/ked,  what  is  the  expediency  of  that  meafure  ? 
Will  it  make  a  more  convenient  and  complete  or- 
ganization ?  When  they  talk  of  carrying  juflicc 
to  the  door  of  every  man,  may  they  not  be  a/kcd 
whether  that  is  mofl  perfectly  carrying  juftice  to  the 
door  of  every  man  ?  His  fituation  in  the  former 
part  of  the  debate  was  fuch,  that  his  duty  would 
not  permit  him  to  take  notes  of  what  was  then  faid, 
but  if  he  had  the  arguments  of  gentlemen  on  this 
head  before  him,  he  fliould  be  pleafed  in  applying 
it  to  every  one  of  them,  to  fee  how  they  would  ap- 
pear to  defeat  themfelves  by  the  application  of  this 
principle.     This,  faid  he,  goes  directly  to  the  great 


1^7 

defeft  in  the  theory  of  federal  government,  which 
has  at  all  times  given  uneafy  apprehenfions  to  its  belt 
friends,  refpefting  the  final  fuccefs  of  this  vaft  and 
benevolent  experiment  in  government.     The  idea 
of  a  continent  uniting  under  a  general  government, 
which  fhould  fettle  general  regulations,  and  do  away 
the  mod  common  caufes  of  war,  is  not  a  thought  fo 
much  out  of  the  ordinary  fubjefts  of  refleftion  as  to 
require  any  inventive  or  profound  genius  to  call  it 
into  view.     It  is  readily  conceived  that  the  eailern 
continent,  as  well  as  this  weflern,  might  have  often 
refle<n:ed  on  the  practicability  of  the  vaft:  experi- 
ment ;   the  great  difcouragement  which  has  proba- 
bly prevented  it,  has  been  that  the  iramenfe   and 
un wieldly   enginery  which  would  be  neceffary  to 
carry  it  on,  to  adminifter  its  laws,  and  manage  its 
money  tranfa6i:ions,  with  tolerable  intelligence  and 
fidelity,  and  keep  up  the  great  vital  circulation,  is 
not  within  the  compafs  of  human  faculties  and  en- 
dowments.    If  ours  fails,  it  will  be  from  that  caufe ; 
its  wifeft  and  bell  friends  appear  always  to  have 
been  aware  of  it,  and  therefore  have,  as  far  as  poili- 
ble,  direfted  it  to  a  few  great  and  general  regula- 
tions, which  feemed  indifpenfable,  and  which  were 
leaft  difficult  in  their  operation  ;  but  that  it  fliould 
be  put   to  ordinary  bufinefs,   then   well  done  by 
ftates,  as  though  in  its  nature  better  fuited  to  it 
than  ordinary  governments,  had  always  'appeared  to 
him,  to  be  the  mofl:  unpromifmg  direftion  that  could 
be  given  to  it.    He  confidered,  that  as  the  (trongeft 


168 

poiUble  objciftion  to  the  new  judiciary  law,  uow 
propofed  to  be  repealed,  that  it  was  unneceflarily 
drawing  the  bufmefs  from  the  dates,  where  it  was 
as  well  lodged,  and  probably  as  well  conducted,  as 
in  any  government  on  earth,  to  the  federal  ellabliih- 
menc,  where,  if  it  was  poflible  to  conduft  it  at  all, 
it  was  not  polUble  to  conduct  it  fo  well,  and  fo 
much  to  the  fatisfaftion  of  the  people,  for  whom 
alone  governments  are  inftituted. 

The  3d  fource  of  argument  which  he  ftiould  no- 
tice was  the  document  No.  8,  fent  by  the  executive. 
As  this  had  already  been  the  principal  topic  of  ar- 
gument to  feveral  gentlemen,  and  had  been  placed 
in  fo  irrefillible  a  point  of  view,  in  fupport  of  the 
propofed  refolution,  he  fhould  add  but  few  words 
upon  it.  It  is  faid  the  document  is  incorreft  j  it  is 
fufficiently  correal  for  all  the  purpofes  of  the  argu- 
ment, which  depends  not  on  there  being  three  or 
four  more  or  lefs  fuits  in  a  particular  place,  but  to 
fliew  that  the  old  judiciary  fyllem  was  perfeftly  fuf- 
ficient  for  all  the  bulinefs,  and  that  the  buiincfs  was 
actually  decreafing  when  the  fyftem  v^as  extended, 
To  this  the  document  is  perfeftly  fuificient,  and  con- 
clulive.  On  this  it  has  been  obferved,  that  there 
being  but  little  bufmefs,  and  that  decreafing,  is  fo 
far  from  being  an  objection  to  the  fyflem,  that  it  is 
the  bed  argument  in  its  favour  j  but  this  proves  the 
perfection  of  the  old  judiciary  fyflem,  which  was 
•the  caufe  of  it,  and  is  now  propofed  to  be  reflorcd, 
and  liOt  of  the  new,  which  is  yet  fcarcely  got  into 


169 

operation.  If  the  decreafe  of  bufmcfs  proved  the 
neceffity  of  the  further  extent  of  the  fyftem,  in  the 
judiciary  law,  the  continuing  to  decreafe,  which  ap- 
pears fmce  that  time,  proves  that  the  fyftem  ought 
now  to  be  ftiil  further  extended 

Mr.  B.  faid,  he  would  proceed  to  fubmit  a  few 
remarks  on  the  view  that  had  been  taken  of  the 
fubjeft  in  its  rdation  to  the  conftitution.  It  feems 
this  part  of  the  conftitution  is  confidered  as  capa- 
ble of  different  meanings,  and  from  fo  many  differ- 
ent opinions  expreffed  upon  it  he  had  no  doubt  it 
was  the  cafe.  Although  governments  of  written 
laws,  and  written  conftitutions  are  undoubtedly  a 
great  and  invaluable  fecurity  to  the  regular  admini- 
ftration  of  public  affairs,  yet  it  muft  be  acknow- 
ledged that,  like  every  thing  human,  they  are  im- 
perfeft  ;  they  clearly  define  and  fettle  many  things 
which  would  otherw  ife  be  afloat  j  but  they  do  not 
fettle  every  thing  ;  queftions  will  arife  in  adminifter- 
ing  them,  which  occalion  honeft  doubts.  When  a 
new  law  is  paffed,  the  moft  upright  and  enlighten- 
ed courts  require  a  length  of  tirpe  to  fettle  the  prac- 
tical queftions  under  it,  and  to  give  definite  mean- 
ing and  precifion  to  all  its  parts.  This  muft  be 
more  likely  to  orcur  in  written  conftitutions,  which 
embrace  fuch  variety  of  important  fubjeds,  general- 
ly in  a  very  fmall  compafs.  Many  queftions  of  this 
kind  have  already  been  fo  far  fettled  by  praftice  on 
our  conftitution,  that  they  have  rarely  been  ftirred 
of  late.     Thofe  occafions  had  been  reprefented  at 


170 

the  time,  as  very  threatening  to  the  government  j 
Congrefs  was  then  nearly  equally  divided  upon 
them,  and  they  did  not  in  the  end  prove  (o  difafbous 
as  had  been  predicted  ;  they  had  generally  termina- 
ted in  favour  of  the  flrift  rather  than  the  literal 
conrt:ru£lion  of  the  inftrument,  not  to  make  the 
words  cover  the  moil  that  they  pollibly  could.  It 
had  been  contended  in  the  early  years  of  the  govern- 
ment, repeatedly,  and  with  much  earneftnefs,  that 
the  preamble  of  the  conftitution  was  a  grant  of 
powers,  and  when  a  meafure  was  propofed,  if  it 
could  be  fliewed  to  have  a  tendency  "  to  form  a 
more  perfeft  union,  eftablifh  juflice,  infure  domeftic 
tranquillity,"  &c.  it  was  conftitutional  ;  the  words 
''  general  welfare'*  in  art.  i,  fee.  8,  had  been  often 
urged  for  the  fame  purpofe,  and  as  authorizing  Con- 
grefs to  build  manufafturing  towns,  a  national  uni- 
verfity,  and  to  carry  on  any  pecuniary  enterprizes, 
with  the  public  money  ;  deliberate  practice  feems 
for  many  years  to  have  fettled  the  conflruftion  that 
thofe  words  (hould  not  be  confidered  as  a  diflinft 
grant  of  power,  but  a  limitation  of  the  power  grant- 
ed in  the  former  part  of  the  article,  to  lay  and  col- 
left  taxes,  &c.  He  inflanced  alfo  the  power  of  the 
Prefident  to  remove  officers,  and  feveral  others  to 
the  fame  effeft.  It  was  fome  reward,  he  faid,  for  the 
trouble  they  had  had  on  fimilar  occafions,  that  the 
greater  part  appeared  now  to  be  fettled,  as  fuch  in- 
ftances  occurred  much  lefs  frequently  than  former- 
'ly  :  the  one  which  now  prefents  itfelf  is  new  j  he 


171 

cxpreffed  his  confidence  that  a  refult  as  proper  and! 
fatisfa^tory  would  take  place  on  this,  as  on  former 
occafions. 

He  believed  there  were  Teveral  points  of  this  na- 
ture in  relation  to  the  judiciary  on  which  the  other 
departments  of  the  government  confider  themfelves 
as  yet  to  have  fettled  no  pra£lice ;  on  which  he  ob- 
ferved  generally,  that  if  it  had  been  intended  to 
convey  thofe  diftinguiftiing  powers  which  have  late- 
ly been  claimed  in  their  favour,  it  might  naturally 
have  been  expected  that  it  would  have  been  done 
in  very  confpicuous  characters,  and  not  left  to  be 
obfcurely  explored  by  conftruftion,  not  enlightened 
by  the  lead recolleftion  from  anybody,  on  a  fubjeft 
and  an  occaiion  certainly  of  the  moft  impreffive  kind, 
and  fo  little  likely  to  have  been  forgotten.  He  faid, . 
the  extent  that  is  now  claimed  to  thofe  vsrords  in  art.  • 
3,  fe£tion  I.  "  That  the  judges  fllould  hold  their 
offices  during  good  behaviour/'  was  greater  than 
he  had  before  contemplated.  His  own  judgment 
adopted  the  conflruftion  that  had  been  given  by  fe- 
veral  gentlemen  who  fupported  the  refolution,  and 
which  they  had  illuftrated  fo  much  at  large,  and  {o 
ably  fupported,  that  he  fliould  add  but  few  words 
upon  it.  The  phrafe  creating  or  eflablifliing  office  is 
familiar  in  our  conftitution  and  laws,  and  may  be  • 
done  by  the  conftitution  or  by  the  legiflature  ;  its 
attributes  are  like  the  ordinary  attributes  of  legifla- 
tion,  to  be  conduced  as  the  wifdom  of  the  legifla- 
ture, and  the  circumftances  of  the  country  may 

Z 


172 

dire(ft.     Office  in  its  original  ufe   is  fynonymous 
with  duty.  When  the  fyftem  of  duties  is  fo  particu- 
larly defined  and  prefcribed  by  the  conflitution,  that 
the  funftionary  is  able  to  go  on  in  the  difcharge  of 
the  duties,  the  office  is  created  or  eftablifhed   by 
the  conflitution  ;  when  this  is  done  by  law,  it  is 
faid  to  be  created  or^eftabliflied  by  law  ;  the  firft 
may  be  of  equal  duration  with  the  conflitution  ; 
when  it  is  created  by  law  it  may  be  of  equal  dura- 
tion with  the  law,  but  in  neither  cafe  can  it   be  of 
longer  duration  ;   to  fuppofeit,  appeared  to  him  to 
be  abfurd.     When  it  is  faid,    "  'ihe  judges  (hall 
hold  their  offices  during  good  behaviour,"  the  firft 
and  obvious  meaning  is,  that  it  fhould  be  theirs  dur- 
ing life,  or  as  Pong  as  there  was  fuch  an  oflice,  un- 
lefs  they  refigned  or  where  removed  for  mlfbeha- 
viour,  that  it  fhould  not  be  taken  from  them  to  be 
given  to  another.     In  fuch  queflions    of  conftruc- 
tions  as  to  the  meaning  of  words  and  phrafes  it  is 
very  difficult  to  prove  that  they  mufl  mean  precife- 
ly  this  and  nothing  elfe  ;   it  was  fatisfaclory  to  him 
that  this  conflruftion  fully  fatisfies  the  meaning  of 
the  words  ;  without  doing  violence  to  the  other 
parts  of  the  inflrument,  it  does  not  interfere  with 
and  deflroy  the  words  which  give  the  legiflative 
power  to  Congrefs.     It  is  known  that  the  impor- 
tance of  the  integrity  of  legiflative  power,  which  is 
fometimes  fpoken  of  under  the  exprcffion  omnipo- 
tence of  parliament,  is  at  Icafl  as  favourite  a  part  of 
the  theory  which  we  have  been  moil  in  the  habit 


173 

«f  confulting,  as  the  independeiKe  of  judges,  particu- 
larly in  the  extent  which  it  is  now  propofed  to  give  it. 
This  ciaufe  is  fpeaking  of  the  tenure  of  the  office  and 
not  of  the  existence  of  the  office,  that  had  been  aptly 
difpofed  o£  in  that  part  of  the  inftrument,  which  is 
on  that  fubjcft,  and  is  to  be  fought  for  among  the 
Icgiflative  powers  and  prohibition  of  power. 

On  the  tenure  of  office,  the  conff:itution  fays, 
the  Prefident  fliall  hold  his  office  for  four  years, 
fenators  for  fix  years,  &c.  judges  during  good  be- 
haviour. 

A\\  thefe  fuppofe  the  office  to  be  in  exiftence, 
but  are  not  defigned  to  authorife  the  funftionaries 
to  hold  over  beyond  that  period,  or  to  affefl  the 
power  which  is  given  to  change  thofe  inftruments. 
The  judges  fliall  have  the  highefl:  pofflble  tenure, 
they  fliall  hold  their  offices  as  long  as  the  conilitu- 
tion  of  the  country,  and  the  conff:itution  of  their  of- 
fices exifl:,  if  they  behave  well.  He  could  not  con- 
fider  the  conftitution  as  contemplating  their  furviv- 
ing  or  holding  beyond  the  exiftence  of  the  conftitu- 
tion of  the  country,  or  the  conftitution  of  their 
office.  It  would  be  a  very  ftrained  conftruftion  to 
confider  that  as  intended.  It  would  alfo  be  a  very 
ufelefs  one  ;  it  goes  to  prevent  the  legiflature  from 
the  right  to  make  laws  on  the  fubje£t,  as  the  cir- 
cumftances  of  the  country  may  require,  without 
which  he  did  not  fee  how  the  government  could  be 
carried  on,  and  yet  does  notfecure  the  judges  from 
intolerable  profecutions  and  oppreihons  of  thofe 


174 

laws ;  in  fliort  it  does  all  the  harm  and  does  no 
good. 

The  roore  violent  partizans  of  this  theory  or 
independence  of  Judge*;  fay,  that  our  conftruftion 
deftroys  the  principle  altogether;  that  thecouflitu- 
tion  might  as  well  have  faid  nothing;  that  it  leaves 
the  judges  entirely  at  the  mercy  of  the  legiflatnre. 
This  is  arguing  from  the  abufe  of  power,  and  ought 
not  to  be  admitted  ;  it  is  not  to  be  prefumed  that 
when  a  conflitution  or  a  judiciary  fyflcm  is  well 
adapted  to  the  circumftances  of  the  country,  and 
gives  fatisfaftion  to  the  people,  that  it  will  be  lightly 
changed  or  altered,  or  that  it  can  be  put  down  or 
deftroyed  merely  to  get  rid  of  the  officers ;  they 
may  abufe  any  other  article  of  power  to  as  great 
cxcefs  ;  they  might  prefcribe  intolerable  duties,  as 
has  been  obferved,  and  thus  oblige  the  judges  to 
refign,  &c.  He  would  not  pretend  to  deny  but 
that  the  words  might  be  taken  in  a  more  cxtenfive 
fenfe,  but  he  thought  this  the  mofl  natural,  and  fuf- 
ficient  to  fatisfy  them,  and  that  there  are  not  many 
pages  in  the  conflitution  in  which  as  probable  and 
promifing  a  criticifm  as  the  one  that  has  been  made 
on  this  occafion  might  not  be  taken  and  introduced 
to  dillurb  and  unfettle  our  practice.  It  is  to  be 
recollected  that  this  theory  of  the  independence  of 
judges  has  already  been  carried  by  us  farther  than 
any  body  elfe  has  carried  it,  in  placing  them  beyond 
the  reach  of  removal,  on  the  joint  addrefs  of  both 
branches  of  tlie  legiflature ;    he  was  not  convinced 


175 

that  any  fo  important  efFefts  had  flowed  from  it,  or 
that  experience  had  as  yet  determined  any  thing  fo 
certain  and  encouraging  on  this  theory,  as,  at  this 
time,  to  warrant  a  further  cxtenfion  of  it  by  con- 
ftruftion. 

Another  meaning  which  has  been  given  to  the 
words  is,  that  the  legiflative  power  on  this  fubjeft 
(hall  remain  entire  to  inftitute  andihapethe  courts 
as  they  may  think  proper,  with  the  one  exception, 
that  "  there  muft  be  one  Supreme  Court  ;'*  but 
that  judges  once  appointed,  are  authorifed  to  hold 
their  pecuniary  emoiuments  during  life,  unlefs  re- 
moved by  impeachment.  This  conflruftion  does 
not  go  to  defeat  the  propofed  refolution  ;  the  refo- 
lution  fays  nothing  about  what  fhall  be  done  with 
the  prefent  judges  ;  they  may  get  their  full  fala- 
ries  during  life,  if  it  is  their  conflitutional  right. 
He  thought  that  of  very  fmall  importance  in  the 
argument,  and  hoped  thofe  gentlemen  would  not 
be  prevented  by  it  from  voting  for  the  refolution, 
if  they  thought  it  had  been  fufhciently  fuppor- 
ted  by  arguments  derived  from  the  nature  of  the 
fubjeft,  which  he  thought  was  the  true  ground  on 
which  the  queftion  ought  to  turn. 

But  a  much  more  extravagant  conftruftion  on 
thofe  words,  he  faid,  had  been  taken,  that  the  words, 
"  they  fhall  hold  their  offices  during  good  beha- 
viour,'*  were  to  be  confidered  as  a  limitation  of 
the  power  of  the  legiflature,  in  creating  and  faftiion- 
ing    their  offices — that  the  offices  are  to  be  confl- 


176 


dcred  as  theirs^  as  a  vested  right,  that  it  would  be 
abfurd  to  fay,  they  Ihould  hold  their  offices,  that 
they  were  a  vefted  right,  &c.  when  they  might 
any  day  be  taken  away  by  a  change  of  the  conili- 
tution,  or  a  repeal  of  the  law  which  creates  it,  and 
which  is  the  coiiflitution  to  that  office  ;  that  you 
(hould  not  kill  the  man,  but  might  fink  the  fliip  on 
which  his  life  depended.  Some  alfo  lay  particular 
ftrefs  on  the  words  "  their  offices"  as  meaning  a 
particular  and  definite  fyflem  of  duties,  which  the 
judges  had  received  from  the  government,  by  the 
contrttcf,  that  the  legiflature  had  no  right  greatly 
to  vary  or  change  this  definite  fyftem  of  duties,  fo 
as  to  make  it  very  burdenfome,  and  oblige  them 
torefign,  and  in  that  way  alfe(n:  this  all-important 
provifion  of  the  conflitution,  the  independence  of 
judges.  This  appeared  to  him  fo  extravagant,  and 
inevitably  led  to  fuch  a  train  of  confequences,  as 
had  been  fully  ftated  by  thofe  who  had  gone  be- 
fore him  ;  he  was  fo  confident  it  could  not  be  adop- 
ted and  pra(Stifed  upon,  that  he  fcarcely  apprehen- 
ded any  danger  from  it.  To  be  fure,  if  the  offices 
are  theirs,  a  veiled  right,  a  matter  of  contra£l  be- 
tween them  and  the  government,  there  is  an  end  to 
all  power  in  the  legiflature  to  change  them  or  even 
icgiflatc  upon  them,  without  the  confent  of  the 
judges  ;  they  mufl  furvive  the  law  creating  them  ; 
and  they  raull  alfo  furvive,  even  though  the  confli- 
tution itfelf  fliould  be  changed.  If  any  conflruc- 
tion  does  violence  to  the  conflitution,  and  defeats 


177 

its  moft  effential  provifions,  this  is  the  one,  and 
needs  to  be  made  the  fubjeft  of  all  the  warnings 
which  had  been  addrefled  to  us  on  thofe  important 
grounds. 

Mr.  Wright  of  Maryland,  obferved,  that  he 
had  been  called  forth,  early  in  this  debate,  rather 
to  defend  the  (late  he  had  the  honour  to  reprefent, 
from  the  unkind  imputation  of  "  a  violation  of  her 
conflithtion,"  (in  which  he  flattered  himfelf,  he 
had  fucceeded  even  to  the  fatisfaftion  of  the  ho- 
nourable gentleman  himfelf,  who,  he  prefumed, 
from  mifmformation,  had  been  induced  to  make  itj, 
than  from  any  defire  at  that  time,  to  enter  into 
the  difcuflion  of  the  -merits  of  the  refolution  then 
under  confideration  of  the  Senate.  He  therefore 
hoped,  he  fliould  now  be  indulged  with  a  few  ob- 
fervations  on  the  merits  of  the  refolution  before 
them,  and  although  it  had  already  occupied  fo  much 
of  the  time  of  the  Senate,  and  had  been  fo  ably  and 
fo  fully  difcufled  by  honourable  gentlemen  of  great 
abilities  and  experience  on  both  fides,  yet  he  {hould 
prefume  to  call  their  attention  to  fuch  prominent 
features  of  the  cafe,  as  had  been  imprefled  on  his' 
own  mind. 

This  fubjeft  has  been  brought  before  us  in  the 
impofmg  fliape  of  a  recommendation  of  the  Pre- 
fident  of  the  United  States,  the  national,  the  con- 
ftitutional  organ  of  the  government,  in  his  official 
meifage  to  Congrefs  on  the  flate  of  the  Unioi\;  a 
duty  impofed  on  him,  by  the  exprefs  letter  of  the 


178 

conftitution  ;  a  duty  he  was  bound  by  the  moil  (o- 
lemn  obligations,  conflitutionally  to  difcharge  ;  a 
duty  that  renovated  and  enlightened  America  had 
too  recently  felected  him  to  difcharge,  readily 
to  believe  he  would    unconflitutionally  abufe. 

Sir,  this  fubjed:  has  been  fubmittcd  to  the  con- 
fideration  of  the  Congrefs  of  the  United  States,  a 
body  felcfted  for  their  patriotifm,  their  wifdom, 
and  their  virtues,  the  conftitutional  organ  of  the 
legiflative  will  of  the  nation,  in  order  to  inform 
their  minds,  and  point  their  attention  to  the  great 
and  important  fubje<fts  on  which  they  were  conven- 
ed to  deliberate,  on  the  honed  difcharge  of  which 
every  thing  valuable  to  America  depends.  This 
fubjed  had  not  been  brought  before  them  in  a  man- 
ner to  coerce  a  hafty  or  an  immature  decifion  on 
the  fubjeft,  nor  had  it  been  left  on  the  vague  foun- 
dation of  fuggeftion  or  conjecture,  but  it  had  been 
brought  before  them  in  a  manner  that  impofed  de- 
liberation, and  had  been  fupported  by  documents, 
that  had  paralifed  and  almoft  fealed  the  lips  of  op- 
pofition  on  the  point  of  its  expediency. 

But,  however  impofing  the  manner,  or  however 
hicontrovertible  the  matter  on  which  the  refolution 
was  predicated,  yet,  honourable  gentlemen  are 
found  on  this  floor  to  oppofe  it  as  a  meafure  of  that 
adminiftration  they  feel  indifpofed  to  fupport,  par- 
ticularly as  it  implicates  the  policy  of  the  late  ad- 
xuiniftration,  and  indeed  a  meafure  which  was  the 


170 

work  of  their  own  hands,  which  mankind  at  all 
times  have  been  prone  to  adniire,  and  hciwevcr 
convinced  of  their  errors,  have  with  great  reluc- 
tance been  brought  to  confefs  them. 

Sir,  it  would  feem  by  the  courfe  of  the  argu- 
ments on  the  prefent  queftion,  that  we  had  it  in 
contemplation  to  break  down  the  federal  judiciary 
altogether,  and  to  fubvert  ancient  foundations,  and 
as  if  the  agents  or  perpetrators  (as  the  gentleman 
from  Connefticut  has  politely  called  them,)  with 
poluted  hands  intended  to  deftroy  that  conftitution 
they  had  fworn  to  fupport,  and  to  leave  the  com- 
munity withojit  a  judiciary  to  inforce  obedience  to 
the  laws,  whereby  the  ftrong  might  give  law  to  the 
weak,  the  rich  opprefs  the  poor,  and  the  artful 
and  the  wicked  irapofe  on  the  weak  and  uninform- 
ed ;  and  all  with  impunity,  and  indeed  would  induce 
a  belief,  that  they,  alone  bad  either  life,  liberty 
or  property  to  be  protected.  But  the  fa(5t  is, 
that  the  old  judiciary  fyftem,  that  has  anfwer- 
ed  every  necelTary  purpofe  from  the  commence- 
ment of  the  government,  remains  inviolate.  It  is 
the  new  fyftem  eftabliflied  at  the  laft  period  of  the 
laft  feffion  of  Congrefs,  a  fyftem  whereby  fixteen 
new  judges  were  introduced  as  circuit  judges,  feve- 
ral  of  whom  had  been  promoted  to  be  circuit  judges 
from  diftrict  judges,  to  make  room  in  the  diftri£t 
courts  for  gentlemen  of  Congrefs  who  affifted  ta 
eftablifli  this  new  fyftem,  and  who  therefore  were' 
by  the  conftitution  difqualified  to  accept  that  office, 
A  a 


180 

created  during  the  time  for  which  they  were  clewed 
to  ferve  in  Congrcfs,  and  as  he  had  faid  before, 
thereby  indirectly  minted  offices  for  themfelves 
and  the  favourites  of  an  expiring  adminiflration — 
a  meafure  refifled  by  the  republicans  in  both 
branches  of  the  national  leglflaturc;  a  meafure  which 
was  carried  into  operation  by  thofc  from  whom  the 
people  have  revoked  their  confidence,  at  the  mo- 
ment their  power  a\  as  paffing  away,  at  a  time  when 
the  bufmefs  in  the  federal  courts  had  declined  near- 
ly one  half,  and  when  the  fedition  law  had  ceafed 
to  be  an  engine  to  reftrain  the  liberty  of  the  prefs, 
and  to  punifti  men  for  the  expreffion  of  their  honed 
political  opinions — was  all  that  was  intended  to  be 
repealed. 

Here  let  me  call  your  attention  to  the  letter  of 
the  refolution,  which  on  reading  it  will  be  fou';d  to 
extend  no  further  than  to  the  repeal  of  the  aft  of 
Congrefs  of  the  laft  feffion,  by  which  fixteen  new 
federal pdgei  had  been  created,  andafyftem  eflab- 
liflied  at  the  annual  cxpence  of  130,000  dollars. 
We  are  now  called  on,  as  the  reprefentativcs  of  the 
nation,  as  the  organ  of  their  legiflative  will  to  de- 
termine whether  this  law,  which  has  been  ever  odi- 
ous  in  the  fight  of  the  people,  and  whofe  birth  was 
not  entirely  legitimate,  fhall  be  repealed.  We  arc 
informed  by  the  Prefident  himfelf,  that  it  is  unne- 
ceilary,  and  that  faft  has  been  eflablifhed  by  the 
document  fubmitted  to  us  on  the  fubjeft  of  the  ju- 
diciary courts  of  the  United  States.     We  are  in- 


181 

formed  alfo  that  on  the  repeal  of  this  law  and  the 
making  fome  retrenchments  in  the  naval  and  mili- 
tary eftablifliments,  which  have  been  already  pro- 
grefled  in,  is  predicated  the  repeal  of  the  odious  in- 
ternal taxes  ;  and  in  this  manner  and  to  effeft  this 
defirabie  purpofe,  this  fubjeft  is  brought  before  us. 
Can  we  then  hefitate  to  reheve  our  people  from  the 
burthen  of  their  odious  internal  taxes  by  the  repeal 
of  this  unneceffary  law  ?  I  ftiould  prefume  not,  if 
govcmcdijingly  by  the  regard  to  the  public  welfare  j 
but  we  have  notwithftanding  been  told  by  honour- 
able gentlemen  on  the  other  fide  of  the  Houfe,  that 
this  law  ought  not  to  be  repealed  : 

I.   Becaufe  it  is  inexpedient. 

a.    Becaufe  it  is  unconftitutional. 

Upon  the  firfl  point,  that  of  its  expediency,  he 
fliould  not  detain  the  SeDate  longer  than  to  obferve, 
that  the  document  on  our  table  fhews,  that  the  old 
judiciary  fyftem,  which  had  been  coeval  with  our 
government,  and  had  been  in  operation  from  its 
commencement,  had  been  at  all  times  fufficient  for 
the  tranfaftion  of  all  the  judicial  bufinefs  of  the 
Union  ;  that  the  bufmefs  in  the  courts  had  already 
declined  nearly  one-half  under  the  old  fyftem,  even 
at  the  moment  of  the  eftabliihment  of  the  new  one  j 
alfo  that  it  was  contemplated  to  repeal  the  odious 
internal  taxes,  a  conliderable  fource  of  litigation ; 
and  that  the  more  odious  fedition  law  had  expired, 
which  they  all  knew  had  been  a  fource  of  confidera- 
ble  litigation,  and  he  was  forry  to  add,   had  not 


182 

placed  the  judiciary  above  the  reach  of  abufe ;  but 
whether  dcfervedly  or  not,  he  dared  not  to  affirm  : 
and  that  the  peace  we  had  lately  eftabliihed  with 
France  had  put  an  end  to  another  fource  of  litiga- 
tion, that  of  admiralty  caufes  on  the  prize  fide 
of  the  court  of  admiralty.  From  this  view  of  the 
fubjeft,  he  himfelf  was  entirely  fatisfied  of  the  ex- 
pediency of  the  repeal,  and  had  little  doubt  that 
every  gentleman  was  equally  fo  that  afiy  evidence 
could  convince. 

As  to  the  point  of  its  being  unconftitutional. 
It  will  be  recollefted,  that  the  Prefident  himfelf  has 
recommended  the  repeal  of  this  law  ;  an  evidence 
of  its  conflitutionality  of  fo  high  authority  with  the 
enlightened  people  of  America,  that  if  it  ftood  fin^ 
gly  on  that,  it  would  require  ^.  federal  host  to  fliakc 
it  ;  but  we  know  there  are  honourable  gentlemen 
on  this  floor  not  difpofed  to  confess  their  refpeft  for 
that  authority  on  this  occafion.  Thofe  gentlemen  I 
will  refer  to  the  conftitution  itfelf,  from  whence,  I 
prefume,  it  will  appear  that  the  power  now  propo- 
fed  to  be  exercifed  is  clearly  delegated. 

In  the  8th  fc<flion,  9th  article,  Congrefs  fliall 
have  power  to  conftitute  tribunals  inferior  to  the 
fupreme  court.  In  the  7th  article,  Congrefs  fhall 
have  power  to  eftablifh  poll  offices  and  poft-roads. 
Thefe  are  thq  precife  expreffions  by  which  Congrefs 
acquire  the  po\vcr  over  the  fubje£ts  of  the  inferior 
courts,  and  of  the  pod-offices  ;  there  is  no  other 
authority  given  them  but  by  thefc  articles  j  there  is 


183 

no  exprefs  authority  to  abollQi  either  courts  or  pofl- 
ofEces,   but  the  fubje^ts   are  refpe(5lively  given  to 
Congrefs  to  exercife  their  legiflative  will  upon,  in  fuch 
manner  as  ihould  bcft  promote  the  public  good.     I 
would  a/k  gentlemen  if  Congrefs  have  not  eflablilli- 
ed  poft-oiEces  v^rithout  number,  and  aboliflied  them 
at  their  will  and  pleafure,  by  virtue  of  their  autho- 
rity under  the  7th  article  above  dated  ;  and  I  fliould 
be  glad  to  hear  from  whence  the  authority  to  abo- 
liih  poft-ofEces  is  derived,  unlefs  from  the  article  that 
only  exprefsly  authorifes   their  eftabliiliment,  and 
whether  the  authority  given  over  the  fubje^l  has 
not  in  all  paft  times  been  held  fufficient  to  juftify 
the  abolifhing  as  well  as  eftabliiliment  of  poft-offices. 
He  then  called  on  the  gentlemen  in  the  oppofition 
to   point  out   a  difterence  between  the  powers  of 
Congrefs   over    the   inferior  courts  and  the  poft- 
offices,    and   to   fliew   how  it  was   that   Congrefs 
could  abolifli  the  poft-offices,   under    an    authori- 
ty  to    eftablifti   them,    and   not  to   abolifli  the  in- 
ferior   courts    under  the    like    authority    to   efta- 
bliflithem,   and  how  the  fame  phrafeology  that  is 
ufed  in  vefting  the  power  in  Congrefs  over  the  poft- 
offices  and  inferior  courts,  can  be  tortured  fo  as  to 
authorize  the    abolifliing  poft-offices,    and  not  to 
authorize  the   abolifliing  the  inferior  courts.    But 
we  have  been  told,  that  by  the  ift  fe^ion  of  the 
3d  article,  this  bufmefs  is  to  be  explained  ;   let  us 
examine    it.     The  judicial  power  of  the  United 
States  shall  be  vefted  in  one  fupreme  court,  and  in 


184 

fuch  inferior  courts  as  Congrefs  tnay  from  t'une  to 
time,  ordain  and  eflablifti.  The  judges  of  the 
fuprcme  and  inferior  courts  fliall  hold  their  offices 
during  good  behaviour.  By  this  it  has  been  infift- 
ed,  that  the  judges  of  the  inferior  as  well  as  the 
fuperior  courts,  hold  their  offices  during  good  be- 
haviour, and  that  we  have  no  power  to  pafs  this 
repealing  law,  becaufc  it  would  operate  to  difmifs 
the  judges. 

He  faid,  that  Congrefs,  by  an  extraordinary  le- 
giflative  aft,  with  the  concurrence  of  two-thirds  of 
the  iUtes,  had  a  power  to  abolifli  even  the  fupreme 
court.  He  alked,  in  fuch  cafe,  what  would  be- 
come of  the  judges  ?  Would  they  be  intitled  to 
hold  their  offices  as  judges,  when  in  the  eye  of  the 
conftitution  there  was  no  fuch  office  ?  No,  certain- 
ly !  The  conftitution  meant,  and  could  mean  no- 
thing elfe,  than  a  judge  under  the  conflitution  j 
and  the  moment  the  conflitution  difcontinued  the 
office,  the  judge  under  the  conflitution  ceafcd  to 
have  a  political  exiflence,  and  would  not  be  known 
to  the  conflitution  as  a  judge.  So  he  concluded,  by 
an  ordinary  aft  of  legiflation,  the  Congrefs  might 
repeal  the  law  erecting  the  inferior  courts,  and  on 
the  repeal  of  the  law,  from  whence  the  legal  exift- 
ence  had  been  derived,  conflituting  them  judges,  he 
ihould  be  glad  to  hear  how  they  could  be  judges  ; 
that  being  created  by  the  law,  they  derived  their 
exiflence  from  the  law,  and  could  not,  as  judges, 
furvivc  it.     The  conflitution  means  a  judge  known 


185 

to  the  law,  and  not  the  man  wlio  had  been  a  judge, 
after  his  political  diflfolution.  He  infifted  that 
Congrefs  can  eftablifli  Icglflatively  a  court,  and 
thereby  create  a  judge ;  fo  they  can  legiflatively 
abolish  the  court,  and  eventually  annihilate  the 
officer  J  that  the  inferior  courts  are  creatures  of  the 
legiflature,  and  that  the  creature  muft:  always  be  in 
the  power  of  the  creator ;  that  he  who  createth 
can  dcftroy.  But  we  are  a  Heed  by  the  honourable 
gentleman  from  New- York,  in  anfwer  to  this, 
"  has  a  man  a  right  to  deftroy  his  own  children.** 
Mr.  WRiGrtT  faid,  he  had  been  taught  to  believe, 
that  man  had  not  been  his  own  creator,  but  the 
happy  inftrument  of  creation.  But  this  power  that 
is  now  denied  to  us,  had  been  exercifed  by  the  gen- 
tlemen themfelves,  in  the  very  law  that  is  now  in- 
tended to  be  repealed.  You  will  fee,  by  adverting 
to  that  law,  the  diftrift  courts  of  Tenneffee  and 
Kentucky,  are  exprefsly  aboliflied,  and  the  office  of 
a  diflrift  judge  for  the  ftates  of  Tenneffee  and  Ken- 
tucky, annihilated.  But  we  are  told  by  honoura- 
ble gentlemen,  that  there  was  a  circuit  court  efla- 
blifhed,  confifling  of  thefe  two  flates,  and  another 
flate,  and  that  the  judges  of  the  diftrift  courts  were 
appointed  judges  of  the  circuit  courts,  and  accepted 
their  commiffions  as  fuch  ;  and  therefore,  they  fay, 
that  they  did  not  deftroy  the  office  of  the  diflirift 
judges  of  Tenneffee  and  Kentucky.  He  aiked,  if 
each  other  Hate  had  not  dillridi  courts  ;  he  alked 
if  there  had  not  been  circuit  courts  eftablifhed  in 


186 

all  the  flates  by  that  law,  and  if  the  diftrift  courts 
of  the  other  ftatcs  had  not  been  continued  ;  and 
can  it  be  faid  that  a  difl:ri£l  court  compofed  of  a  fin- 
gle  (late,  as  in  the  cafe  of  Tenneffee  and  Kentucky, 
is  not  aboliflied,  and  the  office  of  a  diftriQ  judge 
deftroyed,  becaufe  in  the  fame  law  a  circuit  court  is 
eftabliflied,  and  the  diftri^t  judc^es  appointed  circuit 
judges  ?  Can  it  be  Hiid  in  fact  that  it  is  the  fiune 
office,  when  the  duties  are  extended  to  three  ftates> 
to  fit  in  three  places,  as  it  was  when  limited  to  one 
ftate  and  one  place  ;  or  will  gentlemen  tell  us  that 
if  the  judges  of  the  diftricl  courts  had  refufed  to  aft 
as  judges  of  the  circuit  courts,  whether  they  would 
have  been  flill  judges  of  the  diftrift  courts  after 
they  had  been  aboliflied  ?  Or  will  they  fay  that 
the  commifTion  of  a  diflrift  judge,  limiting  his  jurif- 
diftion  to  a  Rate,  is  the  fame  as  that  of  a  circuit 
judge  extending  it  over  three  flates  ?  And  whe- 
ther the  law  authorizing  the  commiffion  over  three 
ftates  ought  not  to  precede  the  commiffion  vcfting 
that  authority. 

Mr.  Wright  aflced,  if  Congrefs,  when  exer- 
cifmg  their  authority  in  the  firft  inflance,  to  eltablifli 
inferior  courts,  had  not  the  right  to  limit  their  con- 
tinuance to  any  p.  riod  and  that  at  the  end  of  that 
period,  if  the  law  was  not  continued,  what  would  be 
the  fituation  of  the  judge  appointed  under  the  law, 
would  his  authority  continue  ?  Certainly  not. 
And  will  any  gentleman  contend  on  this  floor,  that 
if  a  former  Congrefs  had  a  right  to  give  limitation 


187 


to  the  continuance  of  a  law,  that  the  prefent 
Congrefs  have  not  the  fame  authority  to  limit 
or  to  difcontinue.  Honourable  gentlemen,  how- 
ever ingenious,  will  find  themfclves,  he  prefumed, 
unable  to  folve  thefe  difliculties,  or  to  reconcile 
thefe  inconfiftencies  ;  for  his  part,  the  authority  by 
which  this  fubje£t  had  been  brought  before  them, 
the  recommendation  of  the  Prefident,  had  been 
powerful.  The  letter  and  fpirit  of  the  conlLitution, 
when  recurred  to,  had  eftabliflied  him  in  that  opi- 
nion, that  they  were  juftified  in  the  meafure  now 
propofed,  and  the  practice  of  Congrefs  in  abolifliing 
the  dirtri^l  courts  of  TennefTee  and  Kentucky,  fatis- 
fied  him,  that  it  was  no  new  idea,  no  new  exercife 
of  power  ;  and  further,  that  nothing  in  the  form 
of  a  conftitution,  can  be  drawn  fo  guardedly,  that 
gentlemen  may  not  be  found  to  diifer  on  its  true 
conrtruftion  ;  and  even,  as  in  the  prefent  cafe,  at 
different  times  and  on  different  occallons,  differ 
themfclves  in  the  conflru^lion  of  the  fame  inffru- 

ment.     If  all  thefe  confiderations  were  not  fufficient 

* 

to  fatisfy  gentlemen,  and  we  were  obliged  to  recur 
to  the  principles  on  which  this  infirument  muff 
have  been  eftabliflied,  we  lliall  find,  that  we  do  not 
in  any  degree  violate  them  by  the  conflru^lion  we 
put  on  them.  If  the  Britifh  government  is  recur- 
red to,  from  whence  the  flate  governments  borrow- 
ed their  principles,  or  if  the  ftate  conftitutions  are 
reforted  to,  we  (hall  find  thoroughly  incorporated 
the  principles  for  which  we  contend,  that  the  judges 

Rb 


188 

arc  independent  only  of  the  executive,  but  never 
above  the  law  giving  them  their  political  exiftcnce. 
He  admitted,  with  the  gentleman  from  New- York, 
that  judges  ought  to  be  the  guardians  of  the  conlii- 
tution,  fo  far  as  queftions  were  conflitutionally  fub- 
mitted  to  them  ;  but  he  held  the  legiilative,  execu- 
tive, and  judiciary,  each  feverally  the  guardians  of 
the  conftitution,  fo  far  as  they  were  called  on,  in 
their  feveral  department?,  to  ac> ;  and  he  had  rot 
fuppofed  the  judges  were  intended  to  decide  quef- 
tions not  judicially  fubmitted  to  them,  or  to  lead 
the  public  mind  in  legiflative  or  executive  queftions, 
and  he  confeflcd,  he  had  greater  confidence  in  the 
fccurity  of  his  liberty  in  the  trial  by  jury,  which 
had  in  all  times  been  confidered  as  the  palladium  of 
liberty,  than  in  the  decifion  of  judges,  who  had,  at 
fome  time,  been  corrupt.  For  his  part,  he  did  not 
wifti  to  break  down  thejudiciary  or  the  judges,  or 
to  violate  the  conftitution  ;  though  he  confeffed,  he 
fhould  feel  as  fecure  in  the  decifion  of  the  ftate  judg- 
es, in  even  federal  quqftions,  with  an  appeal  to  the 
fupreme  federal  court,  as  in  the  prefent  judges ;  and 
indeed  the  conftitution,  in  the  4th  article,  2d  feftion, 
which  impofes  on  all  ftate  judges  the  oath  toobferve 
the  conftitution  and  laws  of  the  United  States,  al- 
ways feemcd  to  him  to  confider  the  ftate  courts  in  a 
certain  degree  judges  of  federal  queftions.  Nor 
had  he  ever  beeu  able  to  raife  a  doubt  in  his  own 
mind  as  to  the  propriety  ot  trufting  ftate  judges 
to  decide  federal  queftions,  with  an  appeal  to  a 


189 

federal  court  ;  when  he  confidered  that  ftate  juries 
had  always  been  trufted  to  decide  all  quellions, 
from  whofe  decifion  there  was  no  appeal  j  and  in- 
deed the  ftate  courts,  at  all  times,  had  been  the  only 
judicial  guardians  of  our  rights,  who/e  integrity  had 
never  been  impeached.  The  gentleman  from  New- 
York  is  fo  careful  of  the  conflitution,  that  he  wifhed 
it  fecured  by  walls  of  brafs.  Does  he  apprehend 
others  wilh  to  violate  it,  and  himfeif  its  exclufive 
guardian,  and  that  other  gentlemen  do  not  hold 
themfelves  equally  bound  to  protect  it,  or  have  no- 
thing worth  protefting  ?  For  his  part,  he  had  fworn 
to  protecl:  it,  and  never  fhould,  intentionally,  violate 
it  ;  but  he  believed  that  no  human  invention  could 
make  it  more  fecure  th^n  it  was,  depolited  in  that 
hallowed  temple,  and  locked  up  by  the  key  qf  our 
holy  religion. 

Mr.  HiLLHousE,  of  Conne<^icut,  obferved, 
that  he  oppofcd  the  paflage  of  the  law  now  propo- 
fed  to  be  repealed  ;  but  for  the  purpofe  of  getting 
rid  of  a  law  which  he  did  not  like,  he  could  not 
feel  himfelf  juftified  in  tearing  out  a  leaf  of  the 
conilitution.  In  attempting  to  correal  an  error  of  a 
former  legiflature,  we  fliould  be  careful  not  to  com- 
mit  one,  in  its  confequences,  more  fatal  than  the 
firfl.  He  did  not  helitate  to  declare  it  as  his  opi- 
nion, that  not  only  the  law  under  conlideration, 
but  every  other  that  had  been  paiTed  on  that  fubje<5l 
might  be  repealed  ;  but  he  was  furprifed  to  hear 
it  faid  that  this  could  be  done  in  a  way  that  fliould 


190 


deprive  a  iiid?:c,  duly  appointed,  of  his  office  and 
fahiry.  The  words  of  the  conftitution  are  dire(^ 
and  pofltive,  that  "  the  judges,  both  of  the  fupremc 
and  inferior  courts,  "fliall  hold  their  offices  during 
good  behaviour ;  and  fhall  at  ftated  times,  receive 
for  their  fervices  a  compenfation  which  (hall  not  be 
diminiihed  during  their  continuance  in  office.'* — 
The  conftitution  no  where  fays,  ihat  the  judiciary 
fyflem  of  the  United  States,  when  once  formed, 
cannot  be  altered,  the  courts  new  organized,  old 
ones  put  down,  and  new  ones  created  ;  that  is  left 
to  Icgiflative  difcretion,  under  this  rellriftion  only, 
that  there  fhall  always  be  a  fupreme  court,  and 
that  no  judge  (hall  be  deprived  of  his  office  or  fala- 
ry.  To  abolifh  a  court,  without  deftroying  the 
office  or  falary  of  the  judge,  has  not  in  pra£i^ice 
been  found  difficult.  Mod  of  the  dates,  where 
judges  hold  their  offices  during  good  behaviour, 
have  been  in  the  habit  of  doing  it  ;  the  United 
States  have  done  it ;  but  in  no  inflance  has  a  judge 
been  deprived  of  his  office  or  falary,  unlcfs  in  that 
ilatcd  to  have  recently  happened  in  Maryland  ; 
which,  if  the  fa6ts  are  rightly  reported,  ought  not 
to  be  respected^  much  lefs  imitated  by  this  Senate. 
By  a  law  of  Maryland,  courts  had  been  eflabliffied 
and  judges  appointed,  who  by  the  conftitution  hold 
their  offices  during  good  behaviour. — This  law 
was  repealed,  and  during  the  fame  feffion  of  the 
Icgiflature,  a  new  law  was  paffi:d  eftabliffiing  the 
fame  courts,  and  almgll  in  the  fame  words  of  the 


191 

former  law.  What  could  be  the  objcft  of  this  re^ 
peal  ?  Surely  none  other  than  the  turning  the  judg- 
es out  of  office.  Could  that  be  lefs  a  violation  of 
their  conftitution  than  the  paffing  of  a  law  directly 
removing  from  office  the  fame  judges  ?  It  is  too  ab- 
furd  to  fay  that  indirect  means  may  be  ufed  to  ef- 
feft  what  might  not  be  done  by  a  direft  and  pofitive 
law,  or  is  abfolutely  forbidden  by  the  conilitution 
to  be  done  at  all. 

Here  Mr.  Hillhouse  flated  the  various  laws 
of  Virginia,  in  which  they  new  modelled  or  altered 
their  judiciary  fyftem,  by  which,  faid  he,  it  appears, 
that  this  antient  and  important  ftate  has  ever  been 
careful  not  to  violate  the  principle  here  contended 
for,  and  had,  in  no  inftance,  deprived  ajudge  of 
his  office  or  falary. 

To  juftify  fuch  a  conflruftion  of  theconftitution 
as  will  warrant  a  repeal,  it  is  fiid,  if  a  law  may  pafs 
one  feffion  authorizing  the  appointment  of  iixteen 
judges,  who  cannot  be  removed,  it  may  be  extended 
to  fixtcen  thoufand — arguing  that,  btcaufe  the 
power  may  be  abufed,  that,  therefore,  it  does  not 
exiil.  But  will  this  argument  do  ?  Let  it  be  teded 
by  other  parts  of  the  conflitution.  Congrefs  are 
not  limited  in  their  power  to  borrow  money,  or 
raife  armies,  which,  during  the  period  of  one  Con- 
grefs,  might  be  ufed  to  the  total  and  irretrievable 
ruin  of  the  nation.  The  treaty  making  power  is 
vefted  in  the  Prefident  and  Senate,  a  power  which 
has  been  recently  exercifed  in  ratifying  the  conven- 


\0'2 

lion  with  France,  by  which  is  relinquiihed  the 
claims  of  citizens  of  the  United  States,  for  fpoliation, 
to  a  great  amount ;  there  is  nothing  in  the  conRi- 
tution  that  reflrains  this  power  or  the  abufc  of  it ; 
or  that  would  have  prevented  the  introduction  of  an 
article  into  this  fame  convention,  flipulating  the 
payment  to  France  of  an  annual  tribnte  of  twenty 
or  thirty  millions  of  dollars,  a  fum  abfolutcly  ruin- 
nous  to  the  United  States.  The  fame  remarks 
will  apply  to  fundry  other  powers  ;  yet  it  will  not 
be  faid,  that  becaufe  thcfc  powers  arc  liable  to  this 
alnife,  that,  therefore,  they  do  not  exifl:. — There 
never  was  a  conditution,  or  form  of  government 
which  contemplated  it  as  a  poilible  cafe,  that  the 
legiflative  power  ftiould  be  lodged  in  the  hands  of 
madmen,  or  which  attempted  to  provide  againil 
fuch  an  event.  Should  this  be  the  unhappy  fitua- 
tion  of  any  country,  there  would  be  no  remedy  but 
a  refort  to  revolutionary  principles.  From  whom 
is  this  abufe  of  power  refpc6ling  the  judiciary  ap- 
prehended ?  The  legiflaturc  ;  the  fame  legiflature 
in  whofe  hands  we  are  told  the  rights  and  liberties 
of  the  people  are  perfc(flly  fafe. 

In  no  part  of  the  conflitution  is  the  Prefident  direct- 
ly vefted  with  power  to  remove  any  one  from  office  ; 
on  that  fubjedt,  it  is  filent ;  the  reftriftion,  therefore, 
in  relation  to  the  judges,  cannot  refer  to  the  Prefi- 
dent  ;  it  mud  have  been  intended  to  fecurc  them 
againft  every  department  of  the  government.  Any 
other  conflruClion  would  render  the  reflri^ion  fu- 


193 

tile,  and  wholly  deflroy  the  independence  of  the 
judges,  who  would  be  liable  to  be  removed  from 
office  at  every  feflion  of  Congrefs.  All  that  would 
be  necefTary,  would  be  a  repeal  of  the  law  under 
which  they  hold  their  appointments,  M'hich,  if  the 
principle  of  this  iiefolution  is  admilTible,  may  be 
done  without  any  violation  of  the  conflitution.  It 
will  certainly  carry  us  to  that  extent.  It  was,  moft 
certainly,  the^ intention  of  the  convention  who  fram- 
ed the  conflitution,  to  fecure  the  independence  of 
the  judges ;  it  was  thought,  by  every  one,  to  have 
been  done  in  a  moft  effedlual  manner,  until  this  new 
difcovery,  which  is  of  very  recent  date,  of  reforting 
to  a  repeal  of  the  law.  The  independence  of  judges 
is,  certainly,  very  important  to  enfure  a  due  admini- 
ftration  of  juflice,  which,  in  every  well  regulated 
government,  is  confidered  as  a  matter  of  primary  im- 
portance. Other  departments  of  the  government 
may  be  more  fplendid,  but  courts  of  juflice  come 
home  to  every  man's  habitation  ;  their  importance 
is  felt  by  every  individual,  to  them  he  looks  for  fe- 
curity  and  the  protection  of  his  perfon  and  pro- 
perty. 

The  conflitutions  of  dates  are  limited  in  their 
operation,  and  may  be  eafiiy  altered  or  amended  ; 
different,  far  different  is  that  of  the  United  States. 
This  is  the  bond  of  union  between  fixteen  fovereign 
independent  flates,  fpread  over  a  country  of  vafl  ex- 
tent, influenced  by  different  views  and  interefls  ; 
watching,  with  a  jealous  eye,  the  movements  of  the 


194 

general  government ;  and  wliom  it  has  been  found 
difficult,  and  will  grow  more  and  more  difEcult,  to 
unite  in  any  agreement  to  alter  or  amend  this  con- 
llitution,  and  which,  once  deflroyed  by  any  impor- 
tant or  flagrant  violation,  it  is  my  firm  belief,  will 
never  be  renewed. 

The  Senate  then  adjourned  till  Monday,  when 
the  further  confideration  was  poftponed  till  Tuef- 
day  the  19th.  Mr.  White,  of  Delaware,  opened 
the  debate  on  that  day. 

I  (hall  be  believed,  fir,  when  I  aflure  you,  that 
nothing  fliort  of  the  higheft  fenfe  of  duty,  and  the 
great  refponfibility  of  the  feat  I  have  the  honour  to 
hold,  could  enable  me  to  ovcrcomethe  extreme  em- 
barrafllment  I  feel  in  rifing  to  prefent  my  fcntiments 
to  the  Senate,  on  this  the  moft  important  queflion 
ever  before  them.  I  prefume  not  to  think,  after 
the  fuperior  eloquence  and  talents  that  have  been 
here  difplayed,  it  will  be  in  my  power  to  cad  on 
the  fubjecl  a  fingle  additional  ray  of  ligh^  Already, 
fir,  has  it  been  exhaufted,  and,  were  I  to  confult  my 
own  feelings  only,  I  fhould  not  now  have  to  tref- 
pafs  upon  your  patience,  whilH:,  in  the  execution  of 
a  facred  duty,  I  pafs,  haftily,  over  part  of  the  fame 
ground,  that  has  before  been  irod  by  fome  of  my 
honourable  friends,  making  fuch  additional  remarks 
as  might  have  efcaped  them.  In  the  courfe  of  my 
obfervations  I  fliall  confine  myfelf  to  the  fame  divi- 
•fion  of  the  queflion  purfued  by  the  honourable 
mover,  and  which  it  naturally  prcfents. 


195 

1ft.  As  to  tlie  expediency.  2dly.  As  to  the 
conftitutionality  of  the  meafure  propofed  in  the 
refolution. 

That  fome  fyftem  of  courts  is  necefTary  in  our 
country  for  the  execution  of  laws  and  the  admini- 
ftration  of  juftice,  gentlemen  moft  hoftile  to  the 
prefent  eftablifliment  will  readily  admit.  It  is  ac- 
knowledged too,  on  the  other  fide  of  the  houfe,  that 
the  expenfes  of  the  prefent  judiciary  are  unworthy 
your  confideration  j  that  it  is  one  of  the  lead  evils 
attending  it  ;  but,  fay  gentlemen,  it  is  upon  too 
large  a  fcale,  it  is  ufelefs,  it  is  dangerous. 

Sir,  upon  the  original  plan  of  the  courts,  it  was 
found  impoflible  that  the  fix  prefiding  judges,  tra- 
verfing  this  extcnfive  country,  and  holding  their 
feffions  in  every  ftate,  could  either  do  juftice  to  the 
bufinefs,  or  at  their  advanced  periods  of  life,  with- 
ftand  the  fatigue  of  fuch  fevcre  and  conftant  exer- 
cife,  fome  alteration,  fome  amendment  of  the  fyftem 
was  found  indifpenfable  ;  the  intereft  of  the  coun- 
try demanded  it  of  thofe  in  office,  and  it  is  for  the 
execution  of  this  duty  that,  their  political  memories 
are  now  fo  illiberally  reviled.  It  is  well  known,  fir» 
that  the  United  States  are  increafing  in  population, 
commerce,  and  wealth,  beyond  any  former  example; 
that  new  fubjefts  of  litigation  are  every  day  finding 
their  way  into  your  courts,  and  Ihort-flghted  indeed 
, would  have  been  the  founders  of  the  eftablifliment 
now  under  confideration,  had  they  confined  iheir 
views  to  the  prefent  time.     Previous  to  the  pafling 

Cc 


196 

of  this   law,    no  man  who  could  avoid  it,  would 
commit  his  bufmefs  to  your  courts,  their  arrange- 
ment amounted  ahnofl  to  a  denial  of  juflice  ;  fuitors 
preferred  taking  their  chance  in  the  ftate  courts  to 
the  delay  and  expenfe  attendant  upon  the  proceed- 
ings in  thofe  of  the  United  States.     The  conftant 
change  of   prefiding  judges  at  every  fucceeding 
court,    totally  unacquainted  with   what  had  been 
done  by  their  predecefTors,  and  introducing  new 
rules   of  praftice,  together  with    the  unavoidable 
(hortnefs  of  the  terms,  hung  up  the  bufmefs  to  the 
great  inconvenience  and  injury  of  many  fuitors,  and 
mufl:  in  a  fliort  time  have  rendered  that  fyftem  not 
only  ufelefs,  but  even  a  nuifance  to  the  country ; 
people  could  not  be  expefted  to  apply  for  juflice  to 
a  bench  where  time  was  not  given  to  adminiftcr  it. 
Thtfe  fir,  among  many  others,  are  fome  of  the 
reafons  why  bufinefs  had  not  been  originated  in 
your  courts  antecedent  to  the  prefent  law.     Thefe 
are  the  reafons,  fir,  why  their  dockets  are  now  fo 
low  J  and  permit  me    to   fay,   that    the   extrafts 
contained  in  this  document,  even  fuppofing  them 
corre£l:,   which  happens  to  be  far  from  the  facl, 
prove  nothing  ;  they  were  taken  at  a  time  when  the 
prefent  courts  had  fcarcely  commenced  their  opera- 
rations,  immediately  after  the  firfl  circuit,  when  no 
gentleman   will  undertake  to  fay,  there  had  been 
any  thing  like  an  opportunity  at  a  fair  experiment 
of  them.     And  now,  fir,  before  the  people  of  the 
country  have  even  become   acquainted   with  the 


197 

fyftem,  and  before  any  man,  unlefs  by  the  power  of 
mfpiration,  can  judge  of  its  utility,  it  is  in  a  mo- 
ment to  be  dallied  to  pieces.     Why,  I  afk,  fir,  this 
precipitance  ?     Do  gentlemen  fear  that  if  the  mea- 
iiire  is  delayed  until  another  fefTion  the  experiment 
might  render  the  fyftem  popular  ?  And  thefe  hateful 
judges,    for   there  is  the  rub,  fir;  thefe  hateful 
jtidges  will  not  be  fo  fafcly  got  rid  of.     I  hope 
gentlemen,  at  leaft  for  the  prefent,  will  quiet  their 
fears ;  they  need  not,  I  can  alTure  them,  apprehend 
any  immediate  danger  from  this  mighty  army  of 
judicial  veterans,   fo  terrible  in  found  ;   they  are 
now,  I  believe,  fir,  in  winter  quarters  ;  and  even  if 
continued  in  fervice  another  year,  could  not  totally 
ruin  and  enflave  the  country,  or,  as  has  been  indeed 
very  feelingly  expreifed  by  the  honourable  gentle- 
man from  Georgia  on  my  right,  (General  Jack- 
soNjJ  lay  our  virtuous  citizens    in  irons.      The 
honourable  gentleman  from  the  fame  flate,  on  my 
left,  (Mr.  Baldwin,)  has  been  pleafed  to  tell  us, 
that  the  fame  juftice  was  not  to  be  expe£led  from 
the   courts  of  the  United  States  as  from  thofe  of 
the   individual   ftates,  becaufe  the  judges  of  the 
former  cannot  have  a  fuflScient  knowledge  of  the 
ufages  and  cuftoms  of. the  country,  and  their  jurors 
not  being  of  the  vicinage,  can  know  nothing  of  the 
parties  or  their  fuits.     I  admired  much,  fir,  the  in- 
genuity and  candour  of  that  gentleman,  but  this  was 
certainly  among  the  lead  folid  parts   of  his  argu- 
ment ;    unhappily   the  very  reafons  he    adduced 


198 

proved  direftly  tlie  oppofite  of  what  he  wiflied. 
Judges,  fir,  (liould  be  governed  only  by  the  law  of 
the  land,  they  carry  it  with  them ;  they  arc  its 
expoiitors,  and  are  fworn  to  decide  according  to  it, 
and  have  nothing  to  do  with  the  ufages  and  cufloms 
of  the  neighbourhoods  where  they  may  happen  to 
fit.  And  I  have  always  undcrflood,  that  the  great- 
eft  poffible  fecurity  for  the  impartiality  of  jurors,  is 
their  being  entire  llrangers  to  the  contending  par- 
tics,  and  totally  ignorant  of  their  caufes  until  em^ 
pannelled  to  decide  them  ;  they  then  view  nothing 
but  the  naked  fa^ls  arifmg  out  of  competent  tefli- 
mony,  and  are  influenced  only  by  law  and  jufticc. 
And  fuch,  fir,  is  the  frailty  of  our  nature,  that  the 
bed  man  in  fociety  may  be  acting  under  the  influ- 
ence of  politics,  friendfliip,  pafllon,  or  prejudice, 
when  he  fuppofes  himfelf  governed  by  the  purefl 
motives.  Well  aware  though,  as  I  am  fir,  that 
nothing  fliort  of  the  conilitution  itfelf,  and  I  fear 
jiot  even  that  will  be  fuflicient  to  preferve  the  inde- 
pendence of  the  judiciary,  from  this  bold  onfct,  I 
Ihall  now  proceed  to  the  fccond  divifion  of  the  quef- 
tion. 

I  admit,  fir,  that  the  law  propofed  in  the  rcfolu- 
tidn  to  be  repealed,  is  capable  of  much  amendment, 
and  it  has  never  been  denied,  but  that  Congrefs 
had  the  power  of  altering  it  in  any  way,  fo  as  not  to 
impair  the  independence  of  the  judiciary,  by  touch- 
ing the  offices  or  falaries  of  the  judges ;  this  cannot 
be  done,  the  words  of  the  conflitution  on  the  fub- 


199" 

ject,  are  as  explicit  and  certain  as  language  can  be. 
By  the  firft  feftion  of  the  3d  article,  it  is  declared, 
that  "  the  judicial  power  of  the  United  States, 
{hall  be  vefted  in  one  fupreme  court,  and  in  fuch 
.  inferior  courts  as  the  Congrefs  may,  from  time  to 
time,  ordain  and  eftablifli.  The  judges,  both  of  the 
fupreme  and  inferior  courts  ihall  hold  their  offices 
during  good  behaviour."  Does  our  language  ad- 
mit of  words  more  pofitive  than  thefe,  fir  ?  Not  a 
letter  nor  even  a  comma  is  wanting  to  complete  the 
meaning  we  affign  to  them  j  and  I  afk  gentlemen  to 
point  out  any  other  words  that  the  framers  of  this 
inftrument  could  have  ufed,  that  would  have  been 
lefs  equivocal,  or  that  <:ould  import  with  more  cer- 
tainty the  conflruiflion  we  now  contend  for  ;  it  has 
not  yet  been  done,  and  I  defy  them  to  do  it  j  and  if 
a  different  conflrudion  can  be  given  to  thefe  words 
this  written  conftitution  is  not  worth  a  fous ;  it  is  to 
all  ufeful  purpofes  a  mere  chart-blanch  upon  which 
a  legiflative  majority  may  write  what  they  pleafe. 

In  a  preceding  part  of  this  conftitution,  power 
is  given  to  Congrefs,  to  conftitute  tribunals  inferior 
to  the  fupreme  court ;  by  the  ad  to  which  the  re- 
folution  on  your  table  refers,  they  did  fo>  and  in 
purfuance  of  that  ad,  the  Prefident  of  the  United 
States  iffued  commiflions  to  certain  gentlemen  as 
judges,  they  accepted  of  thofe  commillions,  and  at 
the  moment  of  their  becoming  judges,  the  conftitu- 
tion  attached  to  their  offices,  and  guaranteed  to 
them  the  fame  independence  and  permanency  as 


200 

judges  of  the  fupreme  court  ;  for  it  makes  no  dif- 
tlnflion.  "  Judges  both  of  the  fupreme  and  inferi- 
or courts  fhall  hold  their  offices  during  good  beha- 
viour **  On  the  acceptance  of  their  commiflions,  a 
complete  contrail  was  formed  between  them  and 
the  government ;  the  conftitution  told  them,  that 
the  tenure  of  their  offices  fliould  be  their  own  good 
behaviour  j  the  law  told  them,  that  for  their  fcrvi- 
ces  they  (hould  receive  a  certain  fura  annually ; 
thefe  were  the  terms,  fir,  that  tempted  them  to  leave 
their  other  purfuits  in  life  and  can-y  into  execution 
this  contraft  ;  and  it  is  a  contraftthat  no  power  on 
earth  can  dilTolve,  but  by  firfl:  altering  this  conftitu- 
tion in  the  manner  it  direfts,  or  by  violating  it ; 
and  any  law,  attempting  its  diflblution,  operates  rc- 
trofpe6tiveIy,  is  an  ex  poft  fafto  law,  and  in  that 
refpe£k  too,  unconftitutional. 

Bur,  fir,  in  order  to  place  beyond  a  qucftion,  for 
ever,  the  entire  independence  of  the  judiciary,  the 
convention  went  ftill  further,  and  in  this  fame  fec- 
tion,  nay,  in  this  fame  fentence,  for  they  followed 
the  thing  clofely  up,  they  declared,  that  thefc 
judges,  viz.  of  the  fupreme  and  inferior  courts, 
*'  fhall  at  ftated  times,  receive  for  their  fcrvices,  a 
compenfation  which  fhall  not  be  diminifhed  during 
their  continuance  in  office."  And  under  the  words 
of  this  conftitution,  we  have  juft  the  fame  power  to 
diminifh  their  falaries  whijft  they  continue  in  office, 
as  we  have  to  remove  them  from  their  offices  and 
ftrip  them  of  all  falary  j   they  hold  their  offices  dur- 


£01 

ing  good  behaviour,  and  the  full  amount  of  their 
falarles  whilfl:  in  office  by  the  fame  ftrength  and 
power  of  language ;  fot-  can  it  be  faid,  fir,  that  the 
words  "  (hall  not"  are  more  prohibitory,  than  the 
word  "  ihall"  is  mandatory  ?  Certainly  not.  Thefe 
latter  words  apply  efpecially  to  Congrefs :  they  muft 
have  been  introduced  for  the  exprefs  purpofe  of  fix- 
ing and  marking  the  bounds  of  legiflacive  authority 
towards  the  judici  .ry.  And  it  wouM  feem  as  if  the 
wife  framers  of  this  inftrument  had  feared,  not,  fir, 
that  Congrefs  would  ever  prefume  themfelves  au- 
thorifed  abfolutely  to  remove  any  judges  from  their 
offices  without  caufe,  as  is  contemplated  in  that  re- 
folutibn,  for  fuch  an  idea  could  never  have  entered 
their  minds,  after  they  had  the  moment  before  ex- 
prefsly  declared,  in  fo  many  words,  that  the  judges 
both  of  the  fupreme  and  inferior  courts  fhould  hold, 
their  offices  during  good  behaviour,  but  that  the 
afpiring  pride  and  ambition  of  legiflative  power,  in 
fome  unhappy  moment  of  intemperance  or  party 
warmth,  might  attempt  to  impair  the  independence 
of  the  judiciary  in  another  way,  by  afiTuming  a  dif- 
cretionary  power  over  the  falaries  of  the  judges, 
and  thus  rendering  them  dependent  upon  legiflative 
pleafure  for  a  precarious  fupport,  make  them  fervile 
iind  corrupt. 

Gentlemen  acknowledge  that  the  judges  of  the: 
fupreme  court  are  out  of  their  reach  (thank  heaven 
that  they  happen  to  think  fo,  or  they  too  would  ac- 
company their  brethren)  but  fay  they,  the  judges  of 


202 


the  inferior  courts  are  creatures  of  our  own,  and 
wc  can  do  with  them  as  we  pleafe.  Let  me  admit, 
fir,  for  argument  fake,  the  pofitive  meaning  of  the 
conflitution  to  the  contrary  notwithflanding,  that 
thefc  words,  "  The  judges,  both  of  the  fuprerae 
and  inferior  courts  fhall  hold  their  offices  during 
good  behaviour ;"  are  equivocal.  What  reafons 
can  gentlemen  have  to  believe,  upon  what  poffible 
grounds  can  they  prefume,  that  the  makers  of  this 
conflitution  did  not  intend  to  place  the  judges  of 
the  inferior  courts  upon  the  fame  independent  foot- 
ing as  thofe  of  the  fuperior  courts  j  do  they  not 
belong  to  the  fame  great  department  of  your  govern- 
ment ;  intended  to  be  kept  feparate  and  diflindt 
from  the  other  two  great  departments  ?  Is  not 
their  independence  equally  important  to  the  faithful 
adrainiftration  of  juftice  ?  Certainly,  fir,  and  if  pof- 
fible more  h  ;  for  it  is  to  them  the  people,  in  mofl 
inflances,  mud  firfl  apply  for  juftice,  and  a  vafl  pro- 
portion of  the  mofl  important  bufmefs  that  paffes 
through  their  hands,  is  never  carried  into  the  fu- 
preme  court. 

As  to  the  outcry  that  has  been  raifed  about 
fixteen  hundred,  or  iixteen  thoufand,  or  fixteen  mil- 
hons  of  judges  if  gentlemen  pleafe,  calculating  on 
the  abufc  of  power  by  the  conflituted  authorities 
in  the  ufe  of  it,  the  honourable  gentleman  from 
Connefticut  has  fo  fully  and  unanfwerably  replied  to 
it,  tiiat  I  flialJ  make  no  obfervations  on  the  fub- 
jea. 


203 

The  gentleman  from  Georgia,  on  my  right, 
(General  Jackson)  has  told  us,  that  theconftitu- 
tion  cannot  be  altered  in  any  other  way  than  by  two 
thirds  of  Congrefs  agreeing  to  it,  and  then,  very 
emphatically,  afked,  will  two-thirds  now  agree  ?  I 
hope  not,  fir ;  but,  becaufe  a  fufficient  number  of 
us  cannot  agree  upon  altering  it  conftitutionally, 
will  gentlemen  force  their  way  through  it  by  vio- 
lence, in  order  to  get  at  thefe  judges  ?  The  fame 
honourable  gentleman  has  been  pleafed  to  compare 
this  fyftem,  and  thefe  judges,  to  a  cotton  machine  ; 
when  done,  if  it  fliould  not  work  to  fuit  the  maker, 
he  tears  it  all  to  pieces  and  makes  a  new  one.  Are 
we  at  liberty,  to  infer  from  this,  fir,  that  the  pre- 
fent  judges  cannot  be  made  to  work  to  fuit  the  pre- 
fent  rulers,  and  that  this  fyftem  is  to  be  demolifhed, 
to  difplace  them,  in  order  to  make  a  new  one,  and 
feat  upon  your  benches  of  juftice  creatures  more 
pliable  ?  I  hope  not,  fir,  I  am  fure  fuch  cannot  be 
the  views  of  any  honourable  gentleman. 

It  has  been,  day  after  day  echoed,  and  re-echo- 
ed, from  one  fide  of  this  chamber  to  the  other,  that 
this  law  was  one  of  the  lafl  expiring  a6ls  of  the  for- 
mer adminiftration,  that  the  leo^iflature  had  no  ridit 
to  pafs  it  becaufe  they  knew  it  would  be  repeal- 
ed. •  What,  fir,  are  we  told  that  a  majority  of  the 
laft  Congrefs  had  no  right  to  pafs  a  conftitutional 
law  ?  This  is  novel  do^lrine  indeed ;  and  were 
they  to  omit  doing  good,  becaufe  they  had  reafon  to 
believe  their  fuccelTors  would  do  evil  ?     I  acknow- 

Dd 


204 

IcJgc,  fir,  that  the  eflabhfliraent  of  this  judiciary 
fyftem  was  one  of  the  lad  a6ts  of  the  former  admi- 
niflration,  and  it  was  the  very  befl  aft  ;  the  deftruc- 
tion  of  it  is  Hkely  to  be  one  of  the  firft  afts  of  the 
prefent  adminiftration,  and  I  pray  God  that  it  may 
be  the  word,  but,  from  fuch  a  beginning,  the  end  is 
indeed  incalculable. 

Sir,  thefe  judges  may,  by  the  flrong  arm  of  le- 
giflative  power,  be  driven  from  their  feats ;  not 
their  own  unimpeachable  integrity,  their  virtue, 
and  their  learning,  or  even  the  facred  barriers  of 
the  conftitution  itfelf  may  be  fufEcient  to  avert  their 
fate,  but  remember,  though  advanced  in  years,  ma- 
ny of  them  will  live  to  fee,  what  the  gentleman  from 
Maryland  has  called,  the  efflux  of  paifion  and  reflux 
of  reafon — they  will  live  to  fee  the  people  of  this 
country,  review,  with  horror,  the  prefent  attempt, 
and  if,  till  then,  they  fliould  happily  preferve  their 
peace  and  liberties,  wonder  how  it  has  happened. 

I  will  now,  fir,  in  conclufion,  notice,  in  a  (Ivle 
that  it  deferves,  the  language  which  the  gentleman 
from  Virginia,  in  the  difcufljon  of  this  queflion, 
applied  to  the  flate  of  Delaware ;  language  un- 
worthy of  this  floor.  He  tortured  an  cxpreflion  of 
my  honourable  friend  from  New- York,  to  furnifli 
hirafclf  with  an  opportunity  of  travelling  far  out  of 
the  fubjeft,  in  order  to  infult  the  honour  of  the  ftate 
I  belong  to.  After  fpeaking  of  the  fuability  of  dates, 
he  obferved,  that  "  he  fliould  feel  the  fame  inter- 
eft  for  any  ftate,  large  or  fmall,  whether  it  were  the 


205  : 

little  ftate  of  Delaware  herfelf,  or  the  ftill  more  in- 
fignificant  republic  of  St.  Marino.** — The  fpeech  is 
not  yef  in  print,  but  if  I  am  wrong  the  gentleman 
will  correft  me.  Mr.  Mason  explained  j  he  did 
not  mean,  by  what  hefaid,  any  thing  derogatory  to 
the  ftate  of  Delaware ;  on  the  contrary  he  enter- 
tained a  high  refpeft  for  that  (late.  Mr.  White. 
I  hope,  Mr.  Prefident,  I  may  be  further  indulged. 
I  did  not,  at  the  moment,  diftindlly  hear  what  the 
gentleman  faid ;  but  now  mufl  infill  on  knowing, 
explicitly,  from  him,  not  only  what  he  meant,  but 
whether  he  believes  the  word  "  infignificant,"  as 
ufed  by  him,  could,  in  any  way,  apply  to  the  flate  of 
Delaware.  Mr.  Mason  was  about  to  explain  fur- 
ther, when  the  Vice-Prefident  rofe  from  his  feat 
and  obferved,  that  he  was  not  in  the  Senate  when 
the  gentleman  from  Virginia  fpoke,  but  if  he  had 
ufed  any  fuch  words,  as  were  charged  to  him^  they 
were  improper,  and  ought  not  to  have  been' per- 
mitted. That  no  rcfle<5tions  on  any  flate,  or  gen- 
tleman, fhould  be  fuffered  in  the  Senate ;  and  that 
he  hoped  the  gentleman  from  Delaware  would  take 
no  further  notice  of  it.  Mr.  White — As  the 
gentleman  is  now  pleafed  to  deny  his  intaition,  in 
obedience  to  the  chair,  I  (hall  fpare  myfelf  the  trou- 
ble, and  his  feelings  the  pain,  of  a  retort  that  very 
readily  prefents  itfelf. 

Mr.  Chip  MAN,  of  Vermont^ — Mr.  Prefident. 
After  the  length  of  time  which  has  already  b?en  con- 
fumed,  and  the  abilities  which  have  been  difplayed 


206 


in  this  debate,  I  can  have  but  little  hope  of  exhibi- 
ting any  thing  new  for  the  confideration  of  the  Se- 
nate. Yet,  momentous  as  I  confider  the  dicifion  to 
be  made  on  the  prefcnt  queftion,  involving  confe- 
quences  powerfully  affefting  the  mod  important 
principles  of  the  conftitution,  I  cannot  perfuade  ray- 
felf  to  give  a  merely  filent  vote  on  the  occafion.  la 
the  obfervations  which  I  intend  to  make,  I  (hall  en- 
deavour, briefly,  to  examine  fome  of  the  principal 
arguments  only,  which  have  been  offered  in  favour 
of  the  refolution  on  your  table. 

The  arguments,  in  fupport  of  the  refolution,  have 
been  reduced  under  two  general  heads. 

1.  The  expediency  of  repealing  the  law  con- 
templated in  the  refolution,  and 

2.  The  conftitutional  power  of  Congrefs  to  re- 
peal that  law. 

To  evince  the  expediency  of  the  raeafure  it  has 
been  faid,  that  the  fyflcra  of  1793  was  adequate  to 
all  thepurpofes  of  the  national  judiciary  ;  and  that 
the  judges,  appointed  under  that  fyftem,  were  com- 
petent to  all  the  judicial  duties  required.  Upon  this, 
{ir,  I  {hall  briefly  obferve,  that,  from  the  number  of 
terms  of  the  fupreme  and  circuit  courts,  and  the  im- 
menfe  diflance  to  be  travelled,  the  labour  was  un- 
reafonably  great.  From  the  labours  and  fatigues  of 
riding  the  circuit,  there  could  not  be  allowed  time 
fufljcient  for  thofe  duties,  and  for  that  calm  and  de- 
liberate attention,  which  is  (o  necciCiiry  to  a  proper 
difcharge  of  the  duties  of  a  judge. 


207 


At  times  it  has  happened,  that  a  fupreme  judge 
could  not  attend  a  circuit  court ;  from  this  circum- 
ftance,  the  court  in  the  diltrift  to  which  I  have  the 
honour  to  belong,  has  more  than  once  failed  to  be 
holdcn.  At  other  times  the  arrival  of  the  judges 
has  been  fo  late,  that  the  proper  bufinefs  of  the 
term  could  not  be  completed.  Thefe  failures  occa- 
fioued  very  great  delay,  expenfe,  and  vexation,  to 
the  fuitors  ;  and  we  know,  that  the  fame  or  greater 
failures  and  delays  have,  unhappily  been  experienced 
in  other  parts  of  the  United  States,  failures  and  de- 
lays which  I  cannot  attribute  to  any  criminal  negli- 
gence of  the  judges,  but  to  the  burthenfome  duties 
impofed  by  that  fyftera,  and  the  infirmities  and  ac- 
cidents to  which  men  muft  ever  be  expofed,  in  the 
performance  of  labours  fo  arduous  and  extenfive. 

To  prove  that,  judges  of  the  fupreme  court 
muit  have  been  competent  to  all  the  duties  of  that 
and  the  circuit  courts,  the  honourable  gentleman, 
who  brought  forward  the  refolution,  drew  a  com- 
parifon  from  the  courts  and  judges  in  England.  He 
has  told  us,  that  in  England,  there  are  but  1 2  judges, 
and  three  principal  courts,  that  thefe  courts  embrace, 
in  their  original  or  appellate  jurifdiclions,  almofl:  the 
whole  circle  of  human  concerns,  that  the  two  courts 
of  King's-bench  and  Common  pleas,  confiding  each 
of  four  judges,  entertain  all  the  common  law  fuits 
of  4CS.  and  upwards,  arifing  among  nine  millions 
of  the  mofl  commercial  people  in  the  world  ;  and 
that  they  have  moreover,  the  revifion  of  the  proceed- 


208 

iiigs  of  all  the  fubordinate  courts  in  the  kingdom, 
down  to  the  courts  of  piepoudre  j  and  that,  from 
Jong  experience,  thefe  courts  have  been  found  fully 
competent  to  all  thcbufmefs  of  the  kingdom.  This 
flatement,  fir,  is  by  no  means  correft.  In  England 
the  Houfe  of  Lords  is  the  fupreme  court  of  appeals 
in  the  laft  refort,  in  caufes  both  at  law  and  in  equi- 
ty. Inftead  of  three,  there  are  four  fuperior  courts. 
The  court  of  chancery,  iu  which  are  decided  all 
fuits  and  matters  in  equity,  including  a  very  numer- 
ous and  important  clafs  of  caufes.  1  he  courts  of 
king's-bench,  common  pleas,  and  exchequer,  all  of 
which  have  original  jurifdiftion  in  civil  caufes  j  and 
the  king's  bench,  befide  being  the  higheft  court  of 
criminal  jurifdiftion,  has  alfo  the  correftion  and  re- 
vifion  of  the  proceedings  of  all  the  fubordinate 
courts,  by  writ  of  error  or  otherwife.  The  fubor- 
dinate courts,  which  were  barely  mentioned,  arc 
very  numerous.  There  are,  in  England,  exclullve 
of  Wales,  more  than  forty  counties,  all  of  which 
have  their  feparate  courts  and  judges.  Some  of  the 
counties  are  regular  franchifes.  Lancafler,  Chefter 
and  Durham,  have  their  feparate  courts,  both  of 
law  and  equity,  which  claim  cognizance  of  caufes 
and  parties,  within  their  rcfpeftivejurifdiftions.^even 
againft:  the  courts  at  Weftminfler.  There  are  alfo 
an  iramenfe  number  of  cities  and  towns  corporate 
throughout  the  kingdom,  the  courts  and  judges  of 
which,  though  more  or  lefs  limited  in  their  jurifdic- 
lion,  entertain  a  valt  variety  of  civil  fuits.     There 


209 

are,  befides  thefe,  the  high  court  of  admiralty,  which 
has  an  exclufive  jurifdiftion  in  maritime  caufes ;  the 
courts  of  the  two  univerfities,  the  prerogative  court 
of  the  archbifhop  of  Canterbury,  the  archiepifcopal 
court  of  York,  the  diocefan  and  other  ecclefiaftical 
courts,  having  alfoan  extenfive  jurifdi£lion,  of  a  civil 
nature,  in  caufes  tellamentary,  and  thofe  relating  to- 
the  diftribution  of  the  goods  of  inteftates. 

Wales  is  a  principality,  and  its  courts  have  ex- 
clufive original  jurifdiftion  within  the  territory.  The 
great  feflions  is  the  highefl  court  of  the  principality 
from  which  a  writ  of  error  lies  in  the  court  of  King's 
b.ench.  The  fubordinate  courts  and  judges  arc 
equally  numerous  in  proportion  to  the  territory  and 
inhabitants  with  that  of  England.  I  omit  the  courts 
of  confrience  and  other  inferior  courts,  and  magif- 
trates,  almoft  without  number.  From  this  view, 
though  imperfect,  it  is  evident,  that  the  comparifon 
attempted  by  the  honourable  gentleman,  is  by  no 
means  favourable  to  his  conclulion.  The  population 
of  that  country  exceeds  in  number,  that  of  the  Uni- 
ted States  by  one  third,  perhaps  more.  But  its 
whole  extent,  inclufive  of  Wales,  though  not  com- 
prehended in  the  Nifi  Prius  circuits,  does  not  equal 
one  of  the  circuits  of  the  United  States,  under  the 
fyftcmof  1793  ;  and  yet  that  country  employs,  it 
is  believed,  more  courts  and  judges,  not  only  than 
the  government  of  the  United  States,  but  than  al} 
the  individaal  dates  taken  in  addition.  I  do  not 
however  conceive  that  any  advantage  is  to  be  de- 


210 

rived  from  the  comparifon  to  the  one  fide  or  the 
other.  The  fituation  of  property  and  civil  poHcy, 
numerous  and  compHcated  rights,  introduced  by  an- 
cient ufages  and  fupported  by  laws  and  habits,  and 
by  intercfls  public  and  private,  may  render  a  great- 
er number  of  courts  and  judges,  a  more  extenfive 
judicial  fyftem,  neceflary  in  one  country  than  in 
another — I  think  it  ought  to  be  laid  wholly  out  of 
the  qneftion. 

It  has  been  faid,  that  a  knowledge  of  the  local 
laws,  of  the  cufloms  and  manners  of  the  fcveral 
ftates,  is  neceifary  to  the  judges  of  the  fupreme 
courts,  and  cannot  be  difpenfed  with,  on  appeals  in 
caufes  arifmg  in  different  parts  of  the  Union,  and 
that  the  judges  can  acquire  this  knowledge  in  no 
way  but  by  attending  the  circuit  courts  in  the  feve- 
ral  ftates.  But  let  me  obferve,  fir,  that  the  laws  of 
the  feveral  ftates,  which  vary  from  the  common 
law,  are  to  be  found  in  their  llatute  books,  in  the 
decifions  of  their  courts  and  their  rules  of  prafticc, 
for  no  cuftom  can  as  fuch  become  a  law,  until  it  (haH 
have  been  adopted  by  ufages  and  cllabllihed  by  ju- 
dicial decifions.  All  thefe  may  be  made  to  appear 
on  an  appeal,  either  on  the  face  of  the  record,  in 
the  pleadings,  or  in  a  fpecial  verdidl,  or  by  proper 
exemplification,  and  will  afford  the  court  in  fuch 
cafe  a  more  correft  knowledge,  than  the  recollec- 
tion of  a  judge,  of  what  he  has  caught  in  the  hurry 
and  fatigue  of  the  circuit. 


211 

A  further  objeftioii  has  been  urged  agaiafl  the 
contmuance  of  the  prefent  judicial  fyflem,  from  the 
additional  number  of  judges  which  it  has  introduced, 
which,  it  is  faid,  may  prove  dangerous  to  the  liber- 
ties of  the*  country.  An  honourable  gentleman  from 
^'Georgia  (Mr.  Jackson)  cited  the  opinion  of  an 
t-author  who  has  written  on  the  Briiifli  conilitution., 
that  the  greatefl  political  evil  which  could  befiill  a 
country,  was  the   exidence  of  large  judiciary   bo- 
*■  dies,  and  who  had  iiluftrated  his  ideas  on  that  fub- 
je<S  by  inftancing  the  parliaments  of  France      This 
"  obfervation  does  not,  neither  was  it  meant  by  the 
f  author  to  apply  to  any  particular  number  of  courts 

*  in  due  fubordination,  each  confiding  of  a  fmall  and 
limited  number  of  judges,  and  employed  folely  in 

"'|)roper  judicial  buflnefs.  But  it  applies  with  force 
to  courts  compofed  of  numerous  members  and  form-, 
ing  large  bodies,  who  in  addition  to  their  proper 

'judicial  funftions,  are  permitted  to  alfame  an  au- 
thority in  the  political  concerns  of  the  nation.  Such 
were  the  parliaments  of  France,  the  late  judicial 
courts  of  that  country  ;  particularly  the  parliament 

'  of  Paris.  ^J'he  members  of  this  body  were  very 
/numerous,  and  as    it  was  neceflary  that  all  royal 

*-  cdifts,   before  they  were  to  be  co'nfidered  as  laws, 

*  fliould  be  regiftered  in  that  court,  they  claimed  the 
^  right  of  deliberating  and  deciding  on  the  regiftra- 
'  tion  of  any  edift  offered  by  royal  authority,  and 

confequently  of  permitting  or  refufmg  it  the  fanc- 

tion  of  a  law.   With  this  claim  that  body  certainly 

Ee 


212 

became  dangerous  to  thecxiflinggoveniraent,andthe 
conteft  which  enfued  between  them  and  the  king  on 
this  fubje<5l:,  had,  no  doubt,  a  powerful  effcft  in 
precipitating  the  late  revolution  in  that  country. 
But  there  is  nothing  in  all  this  which  can  be  applied 
to  the  courts  of  the  United  States,  Let  me  ob- 
ferve,  fir,  that  there  has  always  appeared  to  me, 
in  the  fy ftcm  of  1793,  which  is  fought  to  be  ref- 
tored,  a  very  great  and  manifeft  impropriety. — 
The  circuit  courts  were  in  that  fyftem,  though  fu- 
bordinatc,  in  fome  mcafure  blended  with  the  fu- 
preme  court,  one  or  more  of  the  judges  of  the 
fupreme  court  being  always  judges  of  the  circuit 
courts.  This  rendered  the  fupreme  court  a  fluctu- 
ating body,  fome  of  the  judges  of  the  fupreme 
court  being  always  excluded  in  the  decifion  ofcauf- 
es  coming  by  appeal  from  the  ditferent  parts  of  the 
United  States.  And  when  two  fupreme  judges 
held  the  circuit  courts,  of  the  four  remaining  judg- 
es who  were  to  decide  on  an  appeal,  three  might 
reverfc  a  judgment  againfl  the  opinion  of  the  fourth 
and  the  opinion  of  the  two  judges  in  the  circuit 
court.  This  has  always  appeared  to  me,  to  fay  no 
more,  a  very  glaring  impropriety  in  that  fyftem. 
The  circuit  courts  under  that  fyftem  have  indeed 
been  compared  to  the  Nifi  Prius  courts  in  England, 
but  the  flighteft  attention  will  convince  any  one 
that  they  do  not  compare.  The  circuit  courts  in 
our  fyftem  are  courts  of  original  and  diftin(^  jurif- 
dii^ons ;  not  fo  the  courts  of  Nifi  Prius  in  England ; 


-213 

they  are  confidered  as   a   branch  of  the  fuperior'  - 
courts  at  'Weftminfter,  and  are  held  by  a  commiflion 
of  affize  ufually  iffued  to  a  judge  of  one  of  the  fu- 
perior courts,  and  an  aflbciate  for  each  of  the  fix 
circuits  into  which  England  is  for  that  purpofe  divi- 
ded.    When  a  caufe  in  any  of  the  fuperior  courts 
is,  by  the  pleadings,  put  on  an  iffue  of  faft,  it  is  with 
the  record  fent  to  be  tried  at  Nifi  Prius  by  a  jury 
of  the  proper  county  ;    inftead  of  calling  up  a  jury- 
to  try  it  at  bar  in  Weftminfter  Hall.   After  the  tri^'^ 
al  at  Nifi  Prius,   the  verdiift  with  the  record  'is  re- 
mitted to  the  court,  out  of  which-  ir  was  fent,  and' 
there  the  opinion  of  the  Nifi  Prius  judge  and  the**, 
conduft  of  the  jury  are  examined  and  confidered  asl 
matters  pafling  in  the  fan?e  court.     Here  then  thc'^ 
comparifon  wholly  f;iil?;    there  is  nofimilarity  be- 
tween the  two  fyfteiHS,  except  that  of  a  judge  riding 
ih&.circuit. 

Here,  fir,  I  ihall  wave  any  further  obfervalions 
on  this  pare  of  the  fubjeft,  and  come  to  the  great 
queftioa  which  it  is  neceffary  to  decide.  Have 
GoDgrefs  the  conftitutional  power  to  repeal  the  law 
as  contemplated  by  the  honourable  mover  of  this  re-  . 
fblution  ?  To  abolifli  the  courts  eflabhftied  by  that 
law,  put  down  the  judges  and  abolifli  their  falarles  ? 
It  is  true,  as  was  obferved  by  the  honourable  gentle- 
man from  Georgia  (Mr.  Baldwin)  that  the  refolu- 
tion  d6es  not  neceffarily  involve  that  queftion,  be*- . 
caufe  the  repealing  a<51;,  if  the  refolution  (hould  be'' 
adopted,  may  be  fo  modified  as  to  avoid  any  diffi- 


214 

cultyou  the  great  point.  But  as  the  honourable  uio. 
ver  avowed  his  intention  to  be  an  abolition  of  the 
courts,  the  offices  of  the  judges  and  their  fabrics, 
and  as  the  principal  arguments  have  in  the  courfe 
of  this  debate  been  dirc(5lcd  by  that  view  of  the  fub- 
jeft,  I  (hall  be  permitted  to  confider  it  on  that 
ground. 

One  fource  of  argument  in  favour  of  the  mea- 
fure  propofed,  has  been  derived  from  the  powers 
confidcred  as  incident  to  every  legiflative  body.     It 
is  faid  that  a  power  to  repeal  all  its  legiflative  afts 
is  infeparably  incident  to   every  fovereign  legifla- 
ture — that  the  adlj  the  repeal  of  which  is  contem- 
plated,   is  a  legiflative  aft  of  Congrefs,   therefore 
Congrcfs  ncccflfarily  have  the  power  to  repeal  it — 
that  to  admit  the  contrary,  h  to  fay  that  the  power 
of  Congrefs  at  one  time  is  not  equal  to  its  power  at 
another  time — that  a  fubfequent  may  be  bound  by 
the  ads  of  a  former  Congrefs,  contrary  to   a  very 
important  maxim  in  legiflation — in  a  word,  that  it 
is  to  make  the  creature  greater  than  the  creator, 
as  it  denies  to  Congrefs  the  power  over  its  own 
a£ls,   which  it  has  paflcd,  and  will  in  courfe  put  a 
flop  to  all  amendments,  all  improvements  of  our 
laws.     This  do£trine,  here  meant  to  be  aficrted,  is 
not  in  the  full  extent  applicable  to  the  legiflative 
powers    under  our  conftitution.      There  are  afts 
which  Congrefs  are,  by  that  inflrument,  exprcfsly 
denied  the  power  of  pafling — there  are  acts  which, 
whenever  paflTed,  Congrefs  cannot  repeal,  or  rather 


215 

the  effefts  of  which  they  cannot  even  fufpend,  much 
lefs  can  they  deftroy.  They  are  cxprefsly  denied 
the  power  of  paffing  ex  pofl:  fafto  laws ;  and  this 
appHes  no  lefs  forcibly  to  a  repealing  aft  than  to 
any  other  aft — it  is  by  its  operation  that  the  na- 
ture of  the  aft  is  in  this  cafe  determined.  Every 
aft  which  in  its  operation  attempts  to  dived  any 
right  previoufly  acquired,  whether  by  a  former 
aft  of  legiflation,  or  by  any  other  lawful  means  of 
acquifition,  is  in  name,  nature  and  eifence,  ex  pofl: 
fafto. 

•4t  Indeed,  fir,  I  apprehend  that  forae  gentlemen 
fhave  been  led  into  a  raiftake  on  this  fubjeft,  by  an 
incautious  admiiTion  of  maxims  and  theories  of 
legiflative  powers  in  another  government ;  but 
which  do  not  apply  to  our  government,  as  infl:ituted 
and  limited  by  our  conflitution.  There  are,  fir,  in 
every  nation  two  kinds  of  legiflative  powers.  The 
one  is  original  and  extraordinary ;  and  may  be 
called  the  power  of  political  legillation.  It  is  by 
an  afibciating  nation  employed  in  forming  and  or- 
ganizing the  government,  in  difpofing  its  powers 
and  defining,  or  limiting  their  exercife.  The  other 
is  derivative,  the  ordinary  power  of  legiflation,  and 
is  employed  in  the  civil  regulations  of  the  commu- 
nity. In  the  firll  confifl:s  the  political  fovereignty 
of  the  nation.  This  power  is  tranfcendant.  It  is 
paramount  to  all  other  powers  in  the  nation.  It 
can  create  powers,  rights  and  duties,  and  can  abo- 
liQi  them  at  pleafure  j  not  becaufe  what  it  does,  h 


216 

always  wife  or  even  juft ;  but  becaufe  no  other 
pi^wcr  Inf  the  nation  can  have  a  right,  or  can  be- 
equal  to  control  its  operations.  In  Great-Brirain; 
from  ancient  ufuge,  the  confent  of  the  nation  wit- 
neffed  by  long  and  general  acquiefcence,  both  the 
ordinary  and  the  extraordinary  powers  of  legifla-  • 
ti®n  are  confidered  to  be  vefted  in  the  parliament 
of  the  nation — afting  in  this  •  capacity  of  political 
fovereign  of  the  nation,  the  Bfitifli  parliament  can'i 
create  rights,  and  can  <ie{lroy  exifting  riglits  at  will ; 
although  in  cxercifing  fuch  acls  of  power,  they  pro- 
ceed with  great  caution^  ^Jid  are  careful  to  indemni- 
fy individaals  whofe  rights  they  may  have  injured* 
In 'this  capacity,  it  can,  as  it  has  done,  new  model 
the  government.  It  can  fix  and  alter  the  duration 
of  parliaments,  and  change  and  limit  the  defcent  of 
the  crowUv  Indeed  veflied  with  this  power,  in*  ad- 
dition to  the  ordinary  powers  of  legillation,  the  fi- 
gure is  hardly  too  bold,  by  which,  when  ading  on 
fubjefls  within  the  reach  of  its  authority,  it  is  faid> 
to  be  omnipotent^  Not  fo  the  Congrefs  of  tht 
United  States,  they  poffefs  not  that  tranfcendant 
power,  that  uncontrolable  fovereignty  of  the  nation ; 
they  poflefs  the  ordinary  powers  only  of  legilla- 
tion ;  and  thefe  powe'rs  they  derive  under  the  con- 
ftitution  of  the  United  States :  by  this  inllrumenr 
their  powers  arc  inftituted,  limited  and  defined. 
This  inflrumcnt  is  the  a^  of  the  political  fovercign, 
the  people  of  the  United  States.  To  them  it  was 
propofcd,  and  they  through  their  agents  impowercd 


217 

for  that  purpofc,  enaSed  it  the  fundamental  and  fu- 

.preme  law  of  the  national  government.  They  have 

faid,  as  ihey  Jiad  a  right  to  fay,  on  this  fubjeft 

f.^Congrefs  Ihall  ail  :  or. that  they  may  a6t  at  their 

.  difcretion  ;  here  the  Gongreffional  power  is  Umi*,e(J, 

♦  there  is  placed  a  barrier  which  (hall  not  be  paffed. 

♦  Congrefs,  as:  1  obferved,  poffefs  not  this  paramo'ant 
jjpowei;^  but  in  one  made,  provided  for  altering  .and 

amending  the-  conftitution,  they  are  under  certain 
rc(lri(Slions,  permitted  an  inceptive  power.     They 

..have  a  right  to  originate  propofals  of  amendment?, 
^' which,  when  ratified  by  three-fourths  of  the  Hate 
legiflatures,  to  which  the  national  fovereignty  is  in 
this  inflance  referred,  are  adopted  into  and  become 
a  part  of  that  inftrument ;  in  another  mode  the 
ftate  legiflatures  have  the  power  of  inception.  They 
alfo  may  originate  propofals  of  amendments, 
which  Congrefs  mufl:  refer  to  a  convention  of  the 

..people  for  their  ultimate  acceptance  and  ratification. 
In  this  inftance  alone  have  the  people  of  this  coun- 
try referved  to  themfelves  a  portion  of  the  national 
fovereignty,  in  the  exercife  of  which  only  is  found, 
that  voice  of  the  people,  which,  becavife  it  is  not  to 
be  refifted,  is  fometimes  called  the  voice  of  God. 
This,  fir,  is  the  authority  of  that  fupreme  law  un- 

.  dcr  which  we  aft,  the  conftitution  of  the  United 
States  ;  an  authority  indifpenfably  binding.  We 
have  «o  right,  when  we  wifii  to<:arry  a  favourite 
meafure,  to  which  we  find  fome  barrier  oppofed  by 
the  CQnftitution,  to  proftratc  or  overleap  that  bar* 


218 

rier.  We  have  no  right  to  fay  that  the  national 
fovcrdgn,  could  it  now  be  confulted,  would  dif- 
penfc  with  the  limitation,  would  remove  the  barrier, 
wliich,  in  our  prefent  opinion,  ftands  oppofcd  to  the 
public  good.  No,  fir,  we  may  not  approach  this 
ground.  It  is  dangerous  j  it  is  an  ufurpation  of 
the  national  fovereignty.  We  are  but  agents  of 
the  nation  afting  under  a  limited  authority.  All 
our  afts  which  exceed  that  authority  are  void. 

Thefe  are  the  principles  to  be  applied  in  the  in- 
veftigatlon  of  conftitutional  powers.  Let  us  then 
examine  the  conftitution  upon  thefe  principles,  and 
fairly  determine  whether  we  are  permitted  the 
power  for  which  it  has  been  contended,  the  con- 
ftitutional power  to  remove  a  judge,  by  abolifliing 
the  office,  and  confequently  to  deprive  hira  of  his 
falary  ?  The  firfl  provifion  which  we  find  in  the 
conftitution  relating  to  the  judicial  department  is  in 
the  fecond  fcftion,  where  among  other  powers  enu- 
merated, it  is  declared  that  Congrefs  /hall  have 
power  "  to  eftablifh  tribunals  inferior  to  the  fu- 
premc  court."  Upon  this  it  was  obferved  by  the 
honourable  gentleman  from  Georgia  (Mr.  ].)  that 
this  being  a  grant  to  Congrefs  of  a  legiflative  pow- 
er to  eflablifli  inferior  courts,  neceflarily  includes 
the  incidental  power  to  repeal  ;  that  this  being  a 
firft  grant,  cannot  be  reftrained  nor  taken  away  by 
any  fubl'equent  provifioii  in  the  conftitution  upon 
the  fame  fubjeft  ;  that  we  are  to  take  the  rule  of 
conftrn^tion,  that  the  firft  grant,  and  thefirft  words 


5219 

of  the  grantor  in  a  deed,  fliall  prevail  over  a  fub- 
fequent  grant,  or  fubfequent  words  of  a  difFerent 
import.  Are  we,  indeed,  fir,  to  apply  in  the  con- 
ftruvSlion  of  the  conftitution,  the  law,  the  fupreme 
law  of  the  nation,  the  rules  devifed  for  the  cor- 
ftruftion  of  a  deed,  a  grant,  by  which  a  few  paltry 
acres  arc  transferred  from  one  individual  to  ano- 
ther ?  No,  fir,  very  difFerent  are  the  rules  of  con- 
ftruftlon  ;  the  firfl:  a(5l  of  the  grantor,  but  the  laft 
a£>of  thelegillature,  dial  1  prevail ;  or  where,  in  any 
cafe,  is  the  power  to  repeal  ?  Another  rule  more 
univcrfally  applicable  is,  that  you  fllall  fo  conftrue  a 
law  that  every  part  of  it,  if  poffible,  may  (land  toge- 
ther, that  every  part  may  have  its  operation.  Thus 
if  there  be  a  general  provifion  in  the  former  part 
of  a  law,  and  there  follow  a  particular  proviiion, 
which  cannot  take  efFe£l  unlefs  fome  part  of  the 
former  provifion  befet  afide,  the  latter  fiiall  becon- 
fidered  as  a  limitation  of  the  former,  and  which  fliall 
be  carried  into  efFe£l  fo  far  only  as  it  is  not  incom- 
patible with  the  latter. 

In  the  third  feftion  of  the  conftitution  is  a  fur- 
ther provifion,  "  That  the  judicial  power  of  the 
United  States  fliall  be  vefted  in  one  fupreme  court, 
and  in  fuch  inferior  courts,  as  the  Congrefs  may 
from  time  to  time  ordain  and  appoint.'*  The 
higheft  judicial  authority  fliall  not  be  divided  into 
two  courts.  It  fliall,  to  ufie  a  ruder  phrafe,  be  one 
and  indivifible.  1  confider  it  as  imperative  to  Con- 
grefs to  eftabliflinot  only  a  fupreme  court,  but  alfp 
Ff 


220 

to  eftablifli  fomc  courts  of  inferior  }urifdi£lion, 
which  may  be  modified  and  extended  from  time  to 
time  as  experience  and  future  expedience  fhali  dic- 
tate, fo  that  it  be  without  violence  to  any  part  of 
the  conftitution.  The  words,  *'  as  Congrefs  may 
from  time  to  time  ordain  and  appoint,"  were  intro- 
duced with  intent  fo  far  to  give  a  difcretion  on  the 
fubjeft.  The  power  of  ere£ling  courts,  is  here 
taken  for  granted,  and  is  contained  in  the  claufe  be- 
fore cited,  from  the  2d  feftion,  fupplied  by  the 
general  claufe  by  which  it  is  declared,  that  *'  Con- 
grefs fhall  have  power  to  make  all  laws  which  fhall 
be  neceffary  and  proper  for  carrying  into  effeft  all 
the  powers  vefled  by  the  conftitution  in  the  govern- 
ment of  the  United  States,  or  in  any  officer  or 
department  of  the  government."  I  cannot  under- 
ftand  it  ;  for  how  is  it  poflible  fo  to  underftand  it, 
that  the  words  "  may  ordain  and  appoint,"  in  their 
connexion,  imply  alfo  a  power  to  abolifh  ?  Cer- 
tainly it  is  not  a  neceffary  implication.  That  Con- 
grefs are  required  to  make  a  provifion  of  inferior 
courts,  that  the  thing  is  not  merely  optional,  is  very 
clear  from  another  part  of  this  fe(flion,  declaring  to 
what  clafs  the  judicial  authority  of  the  United 
States  fhall  be  extended.  (Read  that  part  of  the 
feftion.)  Here  obferve,  the  fupreme  court  has 
original  jurifdi(n:ioin  in  the  fmaller  number  only  of 
the  cafes  fpecified ;  fo  thit  without  a  provifion  of 
inferior  courts,  there  would  be  no  provifion  for  the 
greater  number,  and  the  judicial  authority,  inf^d 


pi 

of  being  extended  to  all  the  cafes  enumerated, 
would  in  faft  be  limited  to  a  few  only.  Let  us 
now  examine  the  provifion  relating  to  the  judges, 
which  is  contained  in  the  former  part  of  this  feftion ; 
a  provifion  intended  to  fecurc  to  the  judges  a  pro- 
per degree  of  independence.  It  is  declared,  that 
•'  The  judges  both  of  the  fupreme  court  and  infe- 
rior courts,  ftiall  hold  their  offices  during  good 
behaviour."  The  judges  of  all  the  courts  are 
placed  on  the  fame  footing.  The  expreffion  is  not 
that  they  fhall  continue  in  office,  which  might  feem 
to  be  compulfory,  but  iliall  hold  their  offices,  im- 
plying at  their  option,  during  good  behaviour. 
For  a  judge  may  refign,  he  may  accept  a  place  in- 
compatible with  the  office  of  judge,  as  he  may  on 
fleftion  accept  the  place  of  fenator  or  reprefentative 
in  Congrefs,  by  which  his  office  of  judge  would  be 
vacated  by  his  own  <^£t,  implying  a  refignation.  The 
force  of  the  expreffion  clearly  is,  that  no  judge 
cither  of  the  fupreme  or  inferior  courts,  fo  long  as 
he  continues  to  behave  well,  can  be  removed  from 
the  office,  or  the  office  removed  from  him,  by  the 
ad  of  any  other.  For  the  expreffion  being  general, 
with  one  only  exception,  in  the  nature  of  a  pro- 
vifo,  that  he  continues  to  behave  well,  it  is  exclufive 
of  every  power  either  to  remove  the  judge  from  the 
cffice,  or,  as  has  been  ingenioufly  indeed  fuggefled, 
of  recovering  the  office  from  the  judge,  caufing  it 
to  vanifli  from  his  hold  on  any  other  ground  or 
pretence  whatever.     It  is  a  well  known  rule,  that 


222 


the  cxpreffion  of  an  exception  in  any  provifion,  ex- 
cludes every  other  exception  by  implication.  Next 
it  follows,  "  and  (hall,  Cthe  judges  (hall,)  at  dated 
times,  receive  for  their  fcrviccs  a  compenfation, 
which  fliall  not  be  diminiftied  during  their  continu* 
ance  in  office.*'  How  long  £hall  they  continue  to 
receive,  or  be  entitled  to  receive,  an  undiminiflied 
compenfation  or  falary  ?  So  long  as  they  fliall 
continue  to  hold  their  refpe«5tive  offices.  And  how 
long  are  they  entitled  to  hold  their  offices  ?  So 
long  as  they  fliall  continue  to  behave  well.  That 
is,  the  duration  of  the  time  for  which  they  Ihall 
be  entitled  to  receive  an  undiminiffied  falary,  ihall 
be  equal  to  the  duration  of  the  time  for  which  they 
are  entitled  to  hold  their  offices,  equal  to  the  dura- 
tion of  the  time  in  which  they  Ihall  continue  to  be- 
have well.  What  rarely  happens  in  fubjefts  of  this 
nature,  the  pofition,  that  the  judges  cannot  during 
good  behaviour,  without  a  direft  violation  of  the 
conftitution,  be  deprived  of  holding  their  offices,  or 
of  receiving  their  falaries,  is  capable  of  the  highcd 
proof,  not  merely  by  a  train  of  probable  and  meta* 
phyfical  rcafoning,  but  by  the  cleared  and  plained 
mathematical  demonflration.  It  is  a  comparifon  of 
quantities  in  the  duration  of  time ;  or  fliall  it  now, 
for  the  flrd  time,  be  faid,  that  when  one  quantity 
or  one  length  of  duration  is  equal  to  a  fecond,  and 
the  fecond  to  a  third,  that  neverthelefs  they  are  not 
equal  each  to  the  other  .?  Have  intuitive  truths  at 
length  changed  their  nature  ?     Are  they  in  thefc 


223 

times  inverted  to  falfchoods  ?  Have  the  cleareft 
axioms  of  ancient  fcience  fuffered  a  revolutionary 
fubverfion  ?  No,  fir,  they  remain  the  fame  ;  they 
are  ftiil  capable  of  affiiiing  us  to  the  fame  infallible 
coQciufions. 

The  honourable  gentleman  from  Kentuckey  has 
t(^d  us,  that  if  the  conftruftion  againft  which  he 
contended,  had  been  contemplated  by  the  framersof 
the  conftitution,  it  would  have  been  explicitly  de- 
clared, that  the  judges  Ihall  hold  their  offices  and 
(alaries  during  good  behiviour,  fairly  admitting^ 
that  a  declaration  thus  explicit,  would  have  been 
conclulive,  for  the  conitruftion  of  his  opponent. 
Surely,  it  will  not  be  contended,  that  the  idiom  of 
the  Englifli  language  is  fo  inflexible,  and  its  inter- 
pretation fo  precife,  that  idenrical  pofitions  to  be 
equally  clear  and  explicit,  can  be  expreffed  by  iden- 
tical words  and  phrafes  only.  Had  the  exprefHon 
been,  they  fliould  hold  their  offices  and  receive  their 
falaries  during  good  behaviour,  would  not  the 
meaning  have  been  the  fame  and  equally  expreiTive  ? 
Indeed  the  word  hold,  though  well  applied  to  an 
office,  is  not  very  properly  applied  to  taking  the 
payment  of  afalary.  Or  had  it  been,  "  they  fliall 
hold  their  offices  during  good  behaviour,  and 
while  they  continue  in  office,  which  is  to  be  during 
good  behaviour,  they  fliall  continue  to  receive  their 
falaries,  which  fliall  not,  during  that  time,  be  dimi- 
niffied,"  it  certainly  would  have  been  a  declaration 
cquallj  explicit  with  that  fuggefl;ed  by  the  gentle- 


224 

man.  And  this,  it  has  been  clearly  and  dcmonftra- 
bly  proved,  is  the  fame  as  that  which  is  expreffed 
in  the  conftitution. 

I  will  here,  fir,  though  it  might  perhaps  have 
been  more  properly  done  before»  make  a  few  ob- 
fervations  on  the  independence  of  the  judiciary.  It 
has  been  faid  by  fomc  gentlemen,  in  efFeft,  that 
though  the  judges  ought  to  be  independent  of  the 
executive,  though  they  ought  not  to  hold  their  offi- 
ces or  falaries  dependent  on  the  will  of  the  Prefi' 
dent,  yet,  in  a  government  like  ours,  there  can  be 
no  reafon  why  they  fliould  not,  like  the  other  de- 
partments of  the  government,  be  dependent  on  pub- 
lic opinion,  and  on  Congrefs,  as  properly  reprefent- 
ing  that  opinion.  That  if  the  judges  are  made 
thus  independent,  if  Congrefs  cannot  remove  them, 
by  abolifhing  their  offices,  or  in  any  other  way, 
except  that  of  impeachment  for  mifbehaviour,  they 
will  become  a  dangerous  body  in  the  state  ;  they 
may,  by  their  difcuffions  on  the  conftitutionality  of 
a  law  obflru£l  the  mod  important  meafures  of  go- 
vernment for  the  public  good. 

Unfortunately  for  the  argument,  this  do(^rinc 
agrees  neither  with  the  nature  of  our  govermnent, 
which  is  not  vefled  with  the  unlimited  national  fo- 
vereignty,  but  from  that  derives  its  powers,  nor 
■with  the  pofitivc  and  folemn  declaration  of  the  con- 
ftitution. That  conftitution  is  a  fyftera  of  powers, 
limitations  and  checks.  The  legiflative  power  is 
there  limited,  with  even  more  guarded  caption  than 


225 

the  executive ;  becaufe  not  capable  of  a  check  by 
impeachment,  and  becaufe  it  was  apprehended, 
that  left  unlimited  and  uncontrolled,  it  might  be  ex- 
tended to  dangerous  encroachments  on  the  remain- 
ing flate  powers.  But  to  what  purpofe  are  the 
powers  of  Congrefs  limited  by  that  inftrument  ?  To 
what  purpofe  is  it  declared  to  be  the  fupreme  law 
of  the  land,  and  as  fuch,  binding  on  the  courts  of 
the  United  States,  .and  of  the  feveral  flates,  if  it 
may  not  be  applied  to  the  derivative  laws  to  teft 
their  conftitutionality  ?  Shall  it  be  only  called  in 
to  inforce  obedience  to  the  laws  of  Congrefs,  in  op 
pofition  to  the  a£ls  of  the  feveral  dates,  and  even 
to  their  rightful  powers  !  Such  cannot  have  been 
the  intention.  But,  fir,  it  will  be  in  vain  long  to 
expeft  from  the  judges,  the  lirmnels  and  integrity 
to  oppofe  a  conftitutional  decifion  to  a  law,  either 
of  the  national  legiflature,  or  to  a  law  of  any  of  the 
powerful  ftates,  unlefs  it  fhould  interfere  with  a  law 
of  Congrefs  j  if  fuch  a  decifion  is  to  be  made  at 
the  rifle  of  office  and  falary,  of  public  charafter, 
and  the  means  of  fubfiftence.  And  fuch  will  be 
thefituationof  your  judges  Jf  Congrefs  can,  bylaw, 
or  in  any  other  way,  except  by  way  of  impeach- 
ment, deprive  them  of  their  offices  and  falaries  on 
any  pretence  whatever.  For  it  will  be  remember- 
ed, that  the  legillative  powers  of  the  feveral  flates, 
as  well  as  thofe  of  Congrefs,  are  limited  by  the  con- 
flitution.  For  inftance,  they  are  prohibited,  as  well 
as  Congrefs,  to  pafs  any  bill  of  attainder  or  ex  pofl 


954 

fafto  law.  The  dccifions  of  the  judges  upon  fuch 
laws,  and  fuch  dccifion  they  have  already  been 
called  upon  to  make,  may  raife  againft  them,  even 
in  Congrefs,  the  influence  of  the  mod  powerful 
dates  in  the  Union.  In  fuch  a  fituation  of  the 
judges,  the  conflitutional  limitation  on  the  legifla- 
tive  powers,  can  be  but  a  dead  letter.  Better 
would  it  be  they  were  even  expunged. 

Thus,  fir,  it  appears,  th^t  the  independence 
of  the  judges,  even  of  Congrefs  in  their  legiflativc 
capacity,  is  agreeable  to  the  nature  of  our  go- 
vernment, to  the  whole  tenor  as  well  as  the  exprefs 
letter  of  the  conflitution.  But,  fir,  at  this  late 
ftagc  of  the  debate  I  will  not  farther  enlarge ;  I  will 
only  add  that  upon  thefe  principles,  and  with  thefc 
views  of  the  fubjeft,  I  fhall  give  a  hearty  negative 
to  the  refolution  on  your  table. 

Mr.  Wells,  of  Delaware.  I  know  not  what  apo- 
logy 1  fhall  make  for  rifmg  at  this  late  period  of  the 
debate,  unlefs  I  find  it  in  the  importance  of  the  fub- 
jcd  under  difcufFion.  Coming,  as  I  do,  from  one  of  the 
fmaller  ftates,  all  of  whom,  from  their  peculiar  fitu- 
ation, feel  perhaps  more  than  a  common  intcrefl 
with  their  fifter  ftates,  in  the  prefervation  of  this 
confiitution,  1  could  not  be  indifferent  to  the  pro- 
grefs  of  the  prcfcnt  queflion.  To  a  ftate  circum- 
flanced  like  that  to  which  I  have  the  honour  to  be- 
long, the  conflitution  of  the  United  States  is  the 
charter  of  her  rights,  and  the  palladium  of  her  li- 
berties.    I  raufl,  therefore,  be  forever  induced  by 


227 

^ntiments  of  attachment  as  well  as  duty  to  refifl 
a  meafure  calculated  to  fubvert  that  conftltution* 
Such,  1  believe,  is  the  tendency  of  the  refolution  on 
your  table.  When  I  fay  (oy  I  do  not  mean  to  im- 
pute any  unworthy  motive  to  the  gentleman  who 
moved  the  refolution  ;  or  to  thofe  who  have  fup- 
ported  him.  Affurcd  I  am  that  thofe  gentlemen 
regard  this  bufinefs  in  a  very  different  light  from 
what  we  do,  or  they  would  not  have  brought  it 
forward.  Believing  that  the  law  in  qucftion  is  a 
bad  one,  and  may  be  conftitutionally  repealed,  it 
was  their  duty  to  endeavour  to  effeft  its  repeal. 

Permit  me  now,  fir,  to  glance  in  as  curfory  a 
manner  as  poffible,  that  I  may  take  up  no  more  of 
your  time  than  need  be,  at  fome  of  the  reafons  which 
have  been  alTigned  by  the  friends  of  this  refolution. 
We  have  been  told  that  the  law  propofed  to  be  re- 
pealed, is  unneceffarily  expenfive.  That  it  is  not 
calculated  to  promote  the  proper  objects  of  a  judi- 
ciary, and  may  be  conftitutionally  repealed.  That 
the  old  fyflem,  which  this  has  fuperfeded,  was  fuf- 
ficient  for  the  due  adminiftration  of  juftice,  and 
therefore  it  is  expedient  to  revive  it. 

It  is  true,  fir,  that  the  retrenchment  of  expences 
has  been  recommended  to  us  by  the  Prefident.  It 
was  his  duty  to  do  fo.  It  is  what  the  people  had 
a  right  to  expe£l  from  us,  as  well  as  him.  And 
thefe  expeftations,  I  truft,  would  not  have  been  dif- 
appointed,  even  if  oUr  attention  to  it,  had  not  been 
invited  by  the  executive.    We  are  placed  now  in  a 


228 

very  different  fituation  from  what  wc  have  been 
for  feveral  years.     The  war  in  Europe  is  over. 
A  war,  permit  me  to  fay,  more  dreadful  than  any 
we  read  of     It  has  raged  Hke  a  tremendous  tem- 
pefl:  bearing  down  almofl:  every  thing  before  it.     It 
was  not  to  have  been  expelled  that  this  our  nation, 
towering  hke  the  majeftic  oak,  fhould  have  efcaped 
its  fury,  yet  it  has  left  us  {landing  ;  the  pride  of  the 
forefl — and  the  only  one  to  which  it  has  not  done 
fome  cruel  mifchief.     But  the  florm  is  paffcd  by  ; 
the  danger  is  over ;  and  many  expenfive  eftabliili- 
raents  may  now  be  reduced  which  could  not  before 
have  been  relaxed.     It  may  now  be  economy  to 
fave,  what  it  would  have  then  been  ruin  not  to 
have  expended.      But  is  the  judiciary  of  a  nature 
to  be  reduced  to  what  is  called  a  peace  cftablifli- 
ment.     From  the  manner  in  which  gentlemen  have 
talked  of  the  expenfe  of  this  department,  it  would 
feem  that  the  fum  to  be  faved  by  the  meafure  now 
contemplated  was   137,000   dollars,  whereas  the 
real  amount  is  only  about  30,000  dollars.    It  is  true, 
fir,  this  fum  itfelf,  were  it  even  lefs,  w  ould  be  too 
much  to  fquander  away.     But  when  you  confider, 
that  if  you  revive  the  former  law,  you  murt:  unavoid- 
ably increafe  the  number  of  the  judges  of  the  fu- 
preme  court,  the  difference  of  expence  between  the 
two  fyflems  will,  probably,  be  about  12  or  15,000 
dollars.     And  for  this  fum,  amounting,  among  the 
people,  to  lefs  than  one  third  of  a  cent  per  man, 
will  gentlemen  perfifl  in  a  meafure  calculated,  in  the 


229 

opinion  of  almofl  half  of  the  members  of  this  body 
to  fubvert  your  conflitution  ?  Is  this  the  economy 
which  our  conftituents  require  from  us  ?  Do  they 
wifli  us,  Hke  rafli  and  greedy  gamefters,  to  rifque 
their  all  upon  one  fmgle  call  of  the  die  ?  If  the 
gentlemen  are  right,  we  fave  about  12  or  15,000 
dollars.  If  they  are  miftaken  in  their  opinions,  we 
lofe  our  conftitution.  Is  there  any  pollible  com- 
parifon  between  the  advantage  and  the  rifque  ?  But 
for  argument  fake  be  it  admitted,  that  the  danger 
on  either  hand  is  equal.  Let  us  then  examine  the 
claims  of  each  opinion  to  preference : 

By  the  former  law,  which  it  is  now  propofed  to 
repeal,   there  were  fix  judges  of  the  fupreme  court 
appointed  in  the  United  States.     In  each  ftate  was 
placed  one  diftrift judge.     For  each  flate  there  was 
held  a  circuit  court  twice  a  year  :    this  was  compo- 
fed  of  one  or  more  of  the  judges  of  the  fupreme 
court  and  the  diflri£t  judge,     'i  he  diftri^l  judge  in 
each  (late  held  a  court  of  his  own  four  times  a  year. 
The  judges  of  the  fupreme  court,   befide  holding 
thefe  circuit  courts,  were  twice  a  year  to  hold  a  fu- 
preme court  at  the  feat  of  government.     One   ob- 
jeftion,  in  my  mind,  to  the  old  fyftem,  was  the  du- 
ties of  the  inferior  and  fuperior  judges  being  blen- 
ded together  and  not  fufEciently  feparated.     Thus 
the  judge  of  the  diftrift  court  was  called  to  go  up 
and  alTociate  himfelt  with  thejudge  of  the  fupreme 
court ;    who  was  obliged  to  come  down  from  the 
higheft  court  to  hol,d  a  circuit  coprt. ,-,  Yquj: judges 


230 

were  like  a  Proteus  ;  conflantly  changing  their  cha- 
rafler.     Each  fet  of  judges,  in  my  opinion  ought  to 
have  their  appropriate  fpherc,  and  fhould  never  be 
fufTcred  to  move  out  of  it.  Another  objcftion  is  not 
without  its  weight.     The  fame  judges  did  not  al- 
ways attend  the  fame  circuit  court;  and,  according 
to  the  gentleman  from  Georgia,  (Mr.  Baldwin) 
this  change  is  neceffary,    in  order  that  the  judges 
may  in  turn  become,  all  of  them,  acquainted  with 
the   municipal   laws  and  cuftoms  of  the  different 
ftates.    AVhat  was  the  confequence  ?  A  judge  after 
attending  a  circuit  court,  and  hearing  a  learned  ar- 
gument w^s  obliged  fometimes  to  poflpone  his  de- 
termination to  the  next  terra.     When  that  arrived, 
a  judge  of  the  fupreme  court  attended  ;  but  not  be- 
ing the  fame  that  attended  before,  a  new  argument 
became  neceflary.   This,  fir,  may  have  been  delight- 
ful fport  for  the  gentlemen  of  the  bar  :  the  poor 
clients    muft  have    felt   far  differently.     But    the 
ftrongefl:  obje(5^ion  to  the  fyftem  was  the  impoffiblhty 
of  the  judges  difcharging  the  duty  required  of  them. 
Thcfe  fix  judges  were  to  attend  among  them  eight 
and  thirty  courts  in  one  year.     Confidering  the  im- 
menfe  extent  o'  country  over  which  thcfccourts  were 
fpread,  and  making  due   allowances  for  the  many 
caufcs  which  would  probably  always  prevent  two 
or  more  of  the  judges  from  attending  the  circuits, 
each  judge  would  have  to  attend  twelve  courts  in  a 
year.     If  this  fyflem  is  \o  prevail,  you  mull  feled 
your  judges,  as  you  inlifl  your  foldiers.     Inltead  of 


231 

enquiring  for  lawyers  of  integrity  and  talents,  you 
mufl:  look  out  for  able  Ixxiied  men  ;  for  fuch  as  arc 
befl  fitted  to  (land  the  fatigue  of  confiant  travelling, 
and  leail:  liable  to  be  affe<5led  by  the  inclemencies  of 
weather.  It  is  impoffible,  if  gentlemen  will  refle(n:, 
that  they  can  believe  it  expedient  to  revive  a  fyflem 
fo  liable  to  objeftions,  fo  impofliblc  to  be  executed. 

Let  us  now  for  a  moment  examine  the  law  which 
is  propofedto  be  repealed.  It  clafTcs  the  United  States 
into  fix  circuits.  In  each  of  the  dates  comprifiug  a 
circuit,  there  is  a  circuit  judge.  In  each  circuit 
there  is  a  court  compofed  of  the  circuit  judges  hv* 
ing  within  that  circuit.  The  judges  of  the  fupreme 
court  hold  their  feiTions  at  the  feat  of  government 
twice  a  year.  There  is  an  appeal  from  the  diflrid: 
court  of  each  ftate,  to  the  court  of  the  circuit  with- 
in which  that  ftate  is  clafled.  From  the  determina- 
tion of  the  circuit  court  there  is  a  final  appeal  to 
the  fupreme  court.  The  fame  judges  are  not  here, 
as  under  the  former  law,  judges  of  the  fuperior  and 
inferior  courts.  Each  has  his  proper  ftation.  No 
judge  will  here  have  to  a61:  upon  an  appeal  from  his 
own  decifion.  In  the  one  there  is  order  and  fyrarae- 
try  ;  in  the  other  nought  but  confufion. 

But  it  would-feem  in  vain  to  reafon  upon  the  re- 
lative value  of  the  two  fyflems  ;  for  gentlemen 
think  that  they  have  difcovered  by  arithmetical  cal- 
culations that  the  late  law  was  unnecefi^ary.  They 
endeavour  to  prove  that  the  fuits  were  decreafing 
in  number  at  the  time  the  additional  judges  were 


X 


232 


appointed.     The  document  they  rely  upon  for  this 
purpofc,  is  a  return  made  from  the  clerks  of  the  dif- 
ferent circuit  courts  ;  fhewing  the  annual  number  of 
fuits  brought  in  each  court  fmce  the  year  1 790.  This 
return  is  not  only  inaccurate,  but  furnifhes  directly 
the  reverfe  conclufions  from  thofe  which  have  been 
drawn  from  it.     I  fay  it  is  inaccurate,  becaufe  the 
return  from  the  court  of  Maryland  is  entirely  omit- 
ted, and  the  aggregates  of  the  fuits  in  the  dates  of 
TennefTee  and  Kentucky  are  only  given.  It  is  incor- 
rect in  another  refpeft.     On  the  returns  from  the 
ilates  of  Maffachufetts  and  Virginia,  it  isftated  that 
the  siiifs  depending  are  not  included  in  thofe  columns 
which  fhew  the  number  of  fuits  annually  inftituted. 
This   document,  therefore,  is  two  glaringly  incor- 
reft  to  be  relied  upon  for  eftablifhing  any  conclu- 
fions  which  ought  to  guide  us  in  bufinefs  of  this  im- 
portance.    But  let  us  take  it  as  we  find  it,  and  fee  if 
the    calculations  of  the  gentleman  from  Kentucky 
(Mr.  Breckenridge)  are  more  to  be  relied  upon 
than   the   document  itfclf.     The   gentleman  fays 
that  in  1799  there  were  1277  fuits  inftituted  ;  and 
in  i8co  there  were  687  fuits  commenced  ;  fhewing 
a  decreafe  "  notvvithflanding,**  as  he  fays,  "  all 
the  temporary  and  untoward  fources  of  federal  ad- 
judications,** of  590  fuits.     There  is  one  circum- 
flance  of  importance  to  be  noted  in  making  this  cal- 
culation.    In  the  year   1799,  there  were  423  fuits 
brought  in  South  Carolina,  which  is  more  than  one 
half  of  the  whole  number  of  fuits  brought  in  that 
flatc  for  ten  years  together.     The  greater  part  of 


233 

thcfc  fuits  were  brought  by  Whitney  and  compa- 
ny, for  the  infringement  of  a  patent  right  which  they 
had  obtained.  The  largefl  number  of  fuits  brought 
in  that  ftate  in  any  one  year  preceding  the  year 
1799,  was  104.  The  gentleman  from  Kentucky 
includes  thefe  fuits  in  that  year's  account  423 

He  includes  all  the  criminal  fuits  brought  in 
thofe  ftates  from  which  the  returns  arc 
made  amounting  to  132,  ai>d  all  other 
fuits  amounting  to  722  854 

Making,  for  fuits  brought  in  the  year  '99 

the  number  of .  "^"^n 

Then  he  allows  for  the  fuits  of  1800, 

only  687 

He  omits  the  whole  of  the   criminal 
fuits  of  that  year,  which  amounted 
to  102,  and  of  other  fuits  iqo  :  ma- 
king together,  thus  omitted  202 
Making  together  889 

Leaving  a  decreafe  of  fuits,  inflead  of  590, 

only  388 

It  will  be  obferved,  as  before-mentioned, 
that  there  are  included  in  the  account  of 
fuits  brought  in  the  year  1799,  423  fuits 
brought  that  year  in  the  ftate  of  South- 
Carolina.  Thefe  exceed  by  319  the 
highefl  number  of  fuits  brought,  in  any 
preceding  year  in  that  flate.  It  will 
therefore  be  neceflarv  to  deduft  thefe 


234 


out  of  the  above  number  in  tiking  a  fair 
view  of  this  fubjeifl 


319 


The  real  decreafe,  between  the  years    1799, 

and  1800  will  only  be  69 

But  in  order  to  place  this  bufinefs  in  a  flill 
clearer  point  of  view,  I  beg  leave  to  fubmit  a  cal- 
culation (hewing  the  annual  aggregate  number  of 
fuits  from  '90  to  1800,  from  which  I  have  exclud- 
ed the  whole  of  the  fuits  brought  in  South-Carolina 
lincc  the  firft  eftablifhment  of  the  courts  : 


1790 
III 


1791 
306 


1792 
3i» 


»793 

400 


1794 
305 


1795 


1796 
466 


1797 
924 


1798 
614 


1799 

854 


1800 
781 


The  following  calculation  is  made  in  order  to 
fliew  the  number  of  fuits  brought,  including  thofc 
of  South  Carolina  for  1790  to  1800  : 


1790  I  1791 
III  I     3»3 


1792 
333 


1793 
446 


J  794 


^795 
614 


1796 
490 


1797 
977 


1798 
719 


1799 

1277 


1000 
889 


Thus,  although  it  is  apparent  that  there  has 
been  a  gradual  increafe  of  fuits,  fince  the  firfl  efta- 
blifliment  of  the  judiciary,  yet  the  gentleman  from 
Kentucky  has  endeavoured  to  imprefs  an  opinion, 
that  the  fuits  have  dccreafed  in  the  proportion  that 
687  bears  to  1277  *  '^"^  ^^^^»  ^^  ^^^  ^^^  gentleman's 


235 

language,  "  notwithflanding  all  the  temporary  and 
untoward  iburccs  of  federal  adjudication."  Yet 
he  has  taken  fpecial  care,  in  order  to  fwell  up  the 
fuits  of  the  year  1 799,  to  draw,  from  "  thefe  tem- 
porary and  untoward  fources  of  federal  adjudica- 
tions,** all  the  criminal  fuits  of  that  year,  and  to  in- 
clude the  319  fuits  of  Whitney  and  company  ;  but 
obferve  when  he  comes  to  put  down  the  fuits  of 
1800  to  contraft  them  with  the  number  brought  in 
1799,  thefe  "  untoward  fources**  arc  immediately 
dried  up,  for  he  excludes  from  his  account  all  the 
criminal  fuits  of  that  year,  and  100  other  fuits.  Pray 
fir,  what  kind  of  arithmetic  is  this  ?  Is  this  the  fe- 
deral arithmetic  which  gentlemen  have  talked  fo 
much  about  ? 

Permit  me  now,  fir,  to  fay  but  a  word  or  two 
upon  the  unconftitutionality  of  this  meafure.  The 
conftitution  has  declared,  that  the  judicial  power 
Ihall  be  veiled  in  a  fupreme  court,  and  in  fuch  in- 
ferior courts  as  Congrefs  may,  from  time  to  time, 
create.  It  has  added,  that  the  judges  of  both  the 
inferior  and  fuperior  courts  fliall  hold  their  offices 
during  good  behaviour  ;  but  may  be  removed  on 
impeachment,  by  the  Houfeof  Reprefentatives  and 
conviftion  by  two  thirds  of  the  Senate.  What 
words  can  go  ftronger  to  the  exclufion  of  every  de- 
pendence of  that  department  upon  the  pleafure  of 
any  other.  The  people  have  thus  duly  fecured 
the  two  great  objects  they  had  in  view — the  inde- 
pendence of  the  judges — and  their  refponiibility, 
Hh 


236 

This  however  is  a  new  way  of  getting  at  the  judge 
without  affe£ling  his  independence.     We  will  not 
touch  the  judge  but  we  will  flip  the  office  from  un- 
der him.     Wc  will  not  lower  his  falary  while  he  is 
in  office,  but  wc  will  fo  contrive  it  that  he  fliall  be 
diverted  of  his  office  and  falary  at  the  fame  time. 
Thus  a  mere  majority  of  each  houfe,with  the  concur- 
rence of  thePrefident,  fliall  effeft,  without  any  fault 
in  the  judge,  what  the  people  defigncd  fliould  be 
brought  about  only  by  impeachment.     But  we  arc 
aflced  "  fuppofe  Congrefs  fliould  appoint  an  array 
of  judges."  I  will  fuppofe  no  fuch  thing.    There  is 
every  fecurity  the  nature  of  the  caufe  will  admit  of, 
that  they  will  not  do  it.     I  will  fuppofe  the  abufe 
of  no  power  which  is  delegated  by  the  confl:itotion, 
except   what  is   fuppofcd  and  guarded  againfl:  by 
that  confl:itution.      If  gentlemen  will  fuppofe  the 
abufe  of  power  in  creating  unneceflfary  offices^  it  is 
equally   fair  to   fuppofe  the  abufe  of  the  power 
which  they  contend  for  ;  viz.  Tliat  of  deftroying 
the  courts.     I  may  fuppofe  that  it  will  be  done  to 
get  rid  of  judges  however  falutary  the  fyfl.tra  under 
which  they  may  be  appointed. 

I  truft,  therefore,  fir,  that  this  refolution  wUl 
not  prevail,  iiuce  it  manifeflly  appears  that  the  fyf- 
tcm  which  geiKlemen  propofc  to  deftroy,  is  in  itfelf 
preferable  to  that  which  they  intend  to  revive  ;  and 
that  the  expenfe  between  the  two  is  inconfiderablc. 
But  how  much  more  ought  this  meafure  to  fail, 
when  without  any  poillblc  benefit  from  the  change, 


237 

it  is  to  deflroy  the  independence  of  the  judges,  and 
prepare  the  way  for  the  fubverfion  of  our  conftitu- 
tion. 

Mr.  CoLHouN,  of  South  Carolina.     Much 
time,  Mr.  Prefident,  has  been  fpent  in  the  impor- 
tant debate   on  the  refolution  before  you  :   great 
ingenuity,  great   abilities,   and   much   eloquence, 
have  been  difplayed  on  the  occafion,  by  gentlemen 
on  both  fides  of  the  queflion,  and  the  fubje<fl  prefent- 
ed  in  almofl:  every  poffible  point  of  view.    For  me, 
therefore,  at  this  late  ftage  of  the  debate,  to  rife, 
for  the  firfl  time,  in  this  houfe,    on  a  fubjeft  of 
fuch  magnitude  and  intricacy,  already  fo  ably  dif- 
cuffed,  and  expeft  to  throw  much  light  on  the  fub- 
je^,  or  find  much  new  ground  to  tread  on,  would 
be  prefumptuous.     But,  thinking  as  I  do,  that  the 
prefent  queflion,  both  in  principle  and  in  its  confe- 
quences,  is  of  the  highefl:  importance  to  the  Union  ; 
under  this  impreffion,  under  this  ccnviftion,  I  fhould 
be  unfaithful  to  my  own  feelings,  were  I  to  give  a 
filent  vote  on   the    occafion.     If  I  can,  therefore, 
throw  but  the  weight  of  a  feather  in  the  fcale  that 
I  think  ought  to  preponderate,  I  fliall  think  myfelf 
juftified  in  doing  fo.     But,  fir,  the  fubjeft  has  been 
fo  much   exhauftcd,  as  well  as  the  patience  of  the 
houfe,  that  I  fliall  endeavour  to  be  as  concife  as 
pofTible,  and  draw  into  as  narrow  a  circle  as  fo  ex- 
tenfiveafubjeit  will  admit,  the  leading  features  of 
the  cafe,   which,   I  apprehend,  fliould  have  mofl 
weight  in  deciding  the  queflion. 


238 

Firfl",  then,  I  fhall  endeavour  to  fhew,  that  the 
prefent  refohirion,  in  its  eifc6l,  is  repugnant  to  the 
cxprefs  letter  and  fpirit  of  the  conflitution.  And, 
fecondly,  I  (hall  contrafl  the  obvious  and  natural 
confcquences  that  will  arife  from  agreeing  to  the 
refolution,  with  thofc  that  would  follow,  fhould  wx 
difagrce. 

<! '  On  the  firfl:  point,  the  moft  important,  as  well 
as  the  moft  proper  queftion  is,  have  we  power,  un- 
der the  federal  conftitution,  to  repeal  the  late  aft 
of  Congrefs,  fo  far  as  it  refpefts  the  office  and  fala- 
ry  of  the  judges  appointed  under  that  aft  ?  If, 
by  the  letter  and  exprefs  words  of  the  conftitution, 
we  have  not  the  power,  then  farther  reafoning  on 
the  fubjeft  would  be  unneceflary,  and  arguments 
drawn  from  expediency  or  inexpediency  would  be 
ufelefs  and  irrevelant  to  the  queftion. 

I  am  not,  fir,  difpofed  to  advocate  the  late  judi- 
ciary fyftem,  in  all  its  modifications,  as  I  think  it 
imperfeft,  and  not  adequate  to  the  purpofes  intend- 
ed, and  that  it  is  not  fuch  an  arrangement  of  the 
judiciary,  as  ought  to  have  been  adopted.  But,  as 
it  has  got  into  exiftence,  and  is  in  operation,  and 
the  judges  appointed  under  the  aft,  commiffioned 
agreeably  to  the  conftitution,  during  good  behavi- 
our ;  the  ground  is  now  changed,  and  although 
previous  to  the  adoption  of  the  aft,  oppofition  to 
the  inexpediency  of  the  mcafure  would  have  been 
right,  would  have  been  proper  ;  yet  now,  under 
cxilling  circumftances,  as  the  law  has  pafi^ed,  and 


259 

the  conftitution  has  attached  to  the  office  of  the 
judges  appointed  under  it,  durability  of  office,  co- 
cxtenfive  with  good  behaviour,  to  amend  would 
be  proper,  but  to  repeal  the  aft,  at  lead  fo  far 
as  it  refpefts  the  judges,  would  be  unconllitu- 
tional ;  for  I  am  of  opinion,  that  as  foon  as  their 
appointments  were  completed,  and  their  commiffions 
during  good  behaviour  received,  that  then  their 
offices  as  judges  were  completely  beyond  the  reach 
of  legiflative  power ;  and  that  therefore,  the  pre- 
fent  refolution  in  its  operations,  fo  far  as  it  refpefts 
the  office  of  the  judges,  is  unconftitutional,  and 
ought  not  to  be  agreed  to. 

Permit  me  here,  fir,  to  define  the  legal  rule  of 
explaining  a  deed,  a  law,  or  confHtutional  point, 
and  then  to  apply  the  part  of  the  conftitution  in 
queflion  to  that  rule.  The  rule  of  law  is,  to  make 
fuch  an  expofition  of  the  feftion  or  ciaufe  under  con- 
fideration,  as  will  comport  with  the  plain  meaning 
when  the  words  are  taken  in  their  common  and  ufu- 
al  acceptation,  agreeably  to  the  Englifli  language  ; 
if  the  ciaufe  is  compofed  of  dubious  and  uncertain 
cxpreffions,  that  will  admit  of  diiferent  meanings, 
or  if  feveral  parts  of  the  initrument  feem  to  contra- 
dift  or  be  repugnant  to  each  other,  then  the  rule  is, 
to  make  fuch  a  conftrudion,  if  poffible,  as  will  be 
confiilent  with  reafon,  and  agreeable  to  the  inten- 
tion and  purview  of  the  whole  inftrument  taken 
together,  I  think  I  amcorrcft  on  the  rule  of  law, 
let  us  now  examine  the  parts  of  the  conftitution 


240 

conncftcd  with  the  prefent  fubjeft,  and  apply  to 
them  the  rules  of  law  ;  araongft  the  detailed  powers 
of  the  legtflature,  under  the  8th  feftion  of  the  ill 
article  of  theconftitution,  we  find  the  foUo'wing,  to 
wit :  **  To  conftitute  tribunals  inferior  to  the  fu- 
preme  court.*' 

If  this  was  the  only  claufe  giving  them  power  to 
eflablifli  the  inferior  courts,  I  would  readily  grant, 
that  the  legiflature  could  make  the  law,  and  at  plea- 
fure  repeal  it,  and  that  the  judges,  as  to  the  tenure 
of  their  office  under  the  aft,  would  be  at  the  will  of 
the  legiflature,  the  exiftence  of  the  law  determining 
the  office  of  the  judge,  precifely  in  the  fame  manner 
and  on  the  fame  footing,  as  of  the  fecretary  of  flatc, 
the  fecretary  of  the  trcafury,  and  the  fecretary  of 
the  navy.  But  the  fubjeft  is  more  fully  exprefled 
and  explained  under  the  proper  head,  in  the  ill  fcc- 
tion  of  the  3d  article  of  the  conftitution,  where  it 
fays,  •*  The  judicial  power  of  the  United  States 
(hail  be  veiled  in  one  fupreme  court,  and  in  fuch 
inferior  courts  as  Congrcfs  may,  from  time  to  time 
ordain  and  ellabliffi.  1  he  judges,  both  of  the  fu- 
-preme  and  inferior  courts,  ftiall  hold  their  offices 
during  good  behaviour ;  and  fhall,  at  ftated  times, 
receive  for  their  fervices,  a  compenfation,  which 
(hall  not  be  diminilhed  during  their  continuance  in 
office.*' 

Here  the  intention  of  the  conftitution  is  explicit, 
and  cannot  be  doubted  ;  plainer  words,  and  a  more 
clear  conftruftcd  fentence  cannot  be  penned.  *'  The 


241 

judges,  both  of  the  fupreme  and  inferior  courts,  fliall 
hold  their  offices  during  good  behaviour.'*     We  all 
fully  and  at  once  underiland  what  is  meant  by  good 
behaviour  in  a  judge,  the  oath  he  takes,  and  the 
very  nature  of  his  office,  fliew  it ;   to  zSt  with  juf- 
tice,  integrity,  ability,  and  honour,  and  to  adftiini- 
fter  juftice   fpeedily  and  impartially,  is  good  beha- 
viour ;    if  he  afts  contrary,  it  would  be  miibeha- 
viour,  and  the  conftitution  in  that  cafe  has  given 
a  remedy  by  impeachment.  If  the  claufe,  therefore, 
admits  a  certain,  clear,  and  confident  conftrudtion, 
and  no  other  part  of  the  conftitution  contains  any 
"?irticle  contradictory  to  it,  which  I  contend  is  the 
cafe,  the  confl:ru6lion  given  by  the  gentlemen  on 
the  other  fide,  being  by  implication  only,  and  thar 
againft   the  plain  and  exprefs  words  of  the  claufe, 
will  not  be  warranted  by  the  principles  of  law  ;  for 
if  the  conftitution  is  paramount  to  an   aft  of  the 
legiilature,  then  to  hold  an  office  during  good  beha- 
viour, and  during  the  plcafure  of  the  legiflature, 
are  fynonimous   terms,  it  mnfl  be  fo,  or  the  ad 
would  be  repugnant  to  the  conditution.     The  con- 
ftitution, on  the  face  of  it,  appears  to  have  been 
drawn  with  precifion  and  correftnefs ;  nothing  fuper- 
fluous,  nothing  difficult.     Had  the  convention  in- 
tended the  conftrudion  now  infifled  for  by  the  fa- 
vourers of  the  relblution,  to  wit :  That  the  judges 
of  the  inferior  courts  hold  their  offices,  not  during 
good  behaviour,  but  at  the  will  of  the  legiflature  ; 
an  explanatory  claufe,  after  the  words  "  good  be- 


242 

haviour,"  would  have  been  ncceflary,  and  fliould 
have   been    inferted    to  this  effect  :    "  Provided 
always,  that  the  judges  of  fuch  inferior  courts  fhall 
hold  their  offices  only  during  the  exigence  of  the 
law  under  which  they  may  be  appointed.**     By  the 
clearnefs  with  which  every  part  of  the  conftitution 
has  been  penned,  it  is  right,  it  is  fair,  by  analogy  of 
reafoning,  to  fay,  that  as  no  fuch  provifion  is  infert- 
ed, no  fuch   fuppofed  conftruftion   was  intended, 
and  that  therefore  the  plain  letter  and  fpirit  of  the 
conftitution  muft  prevail.     But,  if  poffible  to  make 
the  matter  more  clear  and  conclufive,  I  beg  indul- 
gence whilft   I   ftate  three    collateral   arguments, 
which  greatly  ftrengthen  and  inforce  the  conftruc- 
tion  which  I  advocate,  of  that  part  of  the  conftitu- 
tion.    The  firft  is,  that  all  enlightened  ftatefmen,  at 
leaft  fmce  the  American  revolution,  with   concur- 
rent teftimony  agree,  that  the  judiciary  ought  to  be 
kept  feparate  from,  and  independent  of,  the  legifla- 
tive  and  executive  powers ;  that  without  this  check 
and  control,  there   could  be  no  true  and  rational 
liberty.     Secondly,  that  the  framers  of  the  confti- 
tution, who  were  themfelves  amongft   the  bcft  in- 
formed   and     moft   diftinguiflied   citizens   of  the 
Union,  intended  to  keep  them  diftin(5l  and  feparate, 
as  the  three  great   divifions  and  fupporting  pillars 
of  the  conftitution ;  this  appears  from  the  diftinft 
pofition  they  afTigned  each  on  the  face  of  that  in- 
ftrument.     And  thirdly,  by  the  latter  part  of  the 
1ft  fcftion  of  the  3d  article,  the  legiflature  have  no 


241 


power  to  Icflen  a  judge's  falary,  even  to  the  amount 
of  one  cent.  This  reltriction  mufl  refer  to  the 
legiflature,  as  they  alone  have  control  over  the 
funds  of  the  government,  for  the  rule  of  law  is, 
"  that  is  certain  which  can  be  rendered  certain.'* 
If,  therefore,  this  claufe  reflrains  the  legiflature 
from  even  diminifliing  the  falary  of  t\e  judge,  a 
fortiori,  it  prevents  the  removal  from  the  office  it- 
felf,  as  the  words  compofing  the  whole  claufe  are 
equally  plain  and  expreilive.  Thus  then  it  appears, 
at  lead:  to  me,  by  the  plain  and  obvious  conitrucSlion 
of  the  words  of  the  conftitution,  confirmed  and  ex- 
plained by  the  makers  of  it,  that  all  thejudg  s  have 
a  right  to  hold  their  offices  during  good  behaviour, 
and  that  the  legiflature,  as  a  creature  of  that  con- 
flitution,  cannot  by  any  legiflative  aft,  remove 
them.  The  gentlemen,  who  advocate  the  refolu- 
tion,  in  fupport  of  the  meafuie,  fay,  that  Virginia, 
M-aryland,  and  the  lafl:  Congrefs,  afford  examples 
of  a  legiflature  abolifhing  courts,  and  removing 
from  office  judges,  who  under  a  conftitution  held 
their  appointments,  as  in  the  prefent  cafe,  during 
good  behaviour.  Let  us  examine  the  fafts  and  fee 
if  they  apply. 

Virginia  had  a  general  court,  with  common  law 
jurifdiftion,  which  extended  throughout  their  flace, 
a  court  of  chancery  with  equitable  jurifdiftion, 
equally  extenfive,  and  a  court  of  admiralty  ;  the 
judges  of  thefe  three  courts,  conftituted  the.  court 
of  appeals.     About  the  year  1787,  the  legiflature 

li 


244 

of  tj^at  ftatc  found  it  neceffary  to  cftablifli  circuit 
courts,  and  in  the  law,  cnafted,  that  *  the  judges 
of  the  court  of  appeal  flioiild  be  the  circuit  court 
judges.*  This  law  the  judges  refufed  to  execute 
as  unconftitutional,  and  faid,  '  they  confidercd 
themfelves  as  forming  one  of  three  pillars  on  which 
the  great  fabric  of  government  was  created,  and 
that  when  this  pillar  was  endangered  a  rcfignation 
would  fubjeft  them  to  the  reproach  of  deferring 
their  ftations,  and  betraying  the  facred  intcrefts  of 
fociety  intruded  with  them  ;  that  the  propriety  and 
neceffity  of  the  independence  of  judges  is  evident 
in  reafon  and  the  nature  of  their  office,  and  that 
this  applies  more  forcibly  to  exclude  a  dependence 
on  the  legiflature,  a  branch  of  whom,  in  cafes  of 
impeachment,  is  itfelf  a  party.  This  was  the  opinion 
formed  on  the  law,  by  the  then  judges  who  were 
fomeof  the  ablcfl  lawyers,  and  greatefl:  ftatefmen  in 
the  Union.  I  believe  the  event  was,  they  protefl- 
cd  againft  the  law  as  unconflitutional,  refigned 
their  offices,  had  the  refignations  recorded,  and  af- 
terwards were  appointed  circuit  judges.  If  thit 
ilatcment  is  correft,  which  I  prefume  in  fubflance 
it  is  ;  can  it  be  faid,  that  it  affords  an  example 
that  would  juftify,  or  in  the  fmallcH  degree  fup- 
port  the  principles  of  the  refolution  .?  In  the  cafe 
of  Maryland  I  have  not  had  full  information,  there- 
fore, cannot  decide.  In  the  cafe  of  TennefTee  and 
Kentucky,  the  didrift  courts  were  aboliflied  j  the 
judges  were  not  removable   ftom  office  j  but  by 


245 

law  continued  as  circuit  court  judges  with  addition^ 
al  duties  and  additional  falary  of  s^do  dollars  each. 
They  neither  vacated  their  office,  nor  had  to  take 
a  new  oath  or  new  commiflion  ;  therefore  in  this 
cafe,  there  was  no  violation  of  the  conftitution. 
But-  to  fum  the  bufinefs  up,  the  cafe  of  Virginia,  is 
againfl:  them  j  the  cafe  of  Kentucky  and  TcnnefTee, 
not  in  point,  and  Maryland,  fhould  it  afford,  an  ex- 
uraple,  is  the  only  and  folitary  one.  But  let  us  now 
fuppofe  for  argument  fake,  though  the  fad  is  other- 
wife,  that  half  of  the  ftates  in  the  Union  pafTed 
fuch  laws  ;  if  thofe  laws  are  founded  on  wrong 
and  unconftitutlonal  ground,  fliould  they  be  a  pre- 
cedent for  us  f  Surely  not.  If  they  were  found- 
ed in  error,  we  ought  to  corre£i:  and  not  continue 
the  error.  Some  gentlemen  have  faid,  although 
we  cannot  remove  the  judge  from  the  office,  yet 
we  can  remove  the  office  from  the  judge.  To  rae, 
this  is  a  paradox  in  legiflation.  Do  we  mean  to 
aft  indireftly  what  we  would,  not  profefs  to  do 
openly  and  direftly  ?  Are  the  gentjemen  prepared 
to  meet  this  queftion  in  all  its  confequences  ?  Let 
rae  fuppofe  they  are,  and  iketch  a  law  founded  on 
the  confequences  of  their  repealing  ad,  and  exhi- 
bit the  cafe  in  its  real  and  true  light.  In  framing  a 
law  the  preamble  fhould  flate  fafts,  and  explain  the 
reafons  for  paffing  the  aft.  Suppofe  then,  we 
fhould  introduce  inflead  of  their  prefent  repealing 
law,  the  following,  viz.  Whereas  A,  B,  C,  &c. 
the  fixteen  federal  judges  appointed  under  the  late 


246 

aft  of  Congrefs ;  although  they  have  been  commif- 
fioned  during  good  behaviour,  and  have  difcharg- 
ed  the  duties  of  the  office  wiih  integrity,  ability, 
and  honour,  yet,  we  the  legiflature  in  Congrefs  af- 
fembled,  finding  their  number  to  be  more  than  we 
judge  neceffary  for  theadminiftration  of  juftice  to  the 
good  people  of  the  United  States,  and  deeming 
the  law  under  which  they  aft  not  the  beft  poflible 
fyflem  that  could  be  adopted,  and  thinking  alfo, 
that  the  public  good  requires,  that  the  judges  of 
the  inferior  courts  fliould  not  hold  their  offices  dur- 
ing good  behaviour,  but  fliould  hold  them  at  the 
will  of  ths  legiflature  :  Be  it  therefore  enaftcd, 
&c  that  the  faid  fixteen  federal  judges  fhall  be, 
and  they  hereby  are  removed  and  difcharged  from 
their  refpeftive  offices  as  judges,  and  fliall  not  be 
entitled  to  any  compenfation  or  falary  after  the 
paffing  of  this  aft.  This  aft  and  preamble  would 
be  in  truth  only  what  the  repealing  aft  in  its  ef- 
fefts  intended,  and  will  naturally  produce. 

Are  we  prepared  to  vote  for  a  law  in  this  form, 
with  all  the  true  reafons  flated  on  the  face  of  the 
aft,  and  to  wifh  that  publicity  fliould  be  given  to  it 
amongft  our  conflituents,  as  an  aft  that  completely 
dcftroys  the  independence  of  their  judges  ?  For  the 
removal  of  the  judges,  I  may  venture  to  aflcrt,  is 
the  great  objeft  of  the  repeal ;  and  in  this  confifls 
the  injury,  from  the  legiflature  afliiming  a  power 
without  giving  anyreafon  in  the  aft,  as  in  the  pre- 
fect cafe,  '  to  repeal  at  plcafurc  any  law  cftabliffi- 


247 

ing  an  inferior  court,*  and  by  that  means  difmifTing 
the  judges  from  office.     Party  fpirit,  caprice,  or 
perfonal  diflike,  would  be  fufficient  caufe  of  remo- 
val from  office  ;  the  judges  would  know  this,  and 
perhaps  fome  of  them  foon  ftrel  it.    Let  us  fuppofe, 
and  it  is  even  fuppofable,  that  a  caufe  came  on  be- 
fore one  of  the  dependent  judges,  between  an  in- 
fluential member  of  Congrefs  and  a  poor  and  ob- 
fcure  citizen ;  would  any  perfon  fay,  that  the  parties 
flood  on  equal  ground,  and  that  the  fcales  of  jui'tice 
hung  equal  between  them  ?    It  would  be  almoft 
beyond  human  nature,  for  this  dependent  judge  to 
be  impartial,  efpecially,  if  his  falary  was  the  only 
means  of  fubfftence,  and  men  of  great  abilities  and 
well  fitted  for  the  office,  might  be  in  that  fituation, 
for  a  wife  man  tells  us,   that    '*  the  race  is  not  al- 
ways to  the  fwift,  nor  riches  to  men  of  underftand- 
ing.'*     So   fully  am  I  convinced,  that  the  judges 
ought  to  be  independent  of  the  legiflature  as  well 
as  of  the  executive,  that  if  there  could  be  a  doubt 
that  they  are  not  fully  and  completely  fo,  the  con- 
flitution  ought   to  be  amended  for  that  exprefs 
purpofe.    Hitherto  the  judges  have  fuppofed  them- 
felves  independent,  and  the  people  have  acquiefced 
under  that  belief,  and  ought,  and  do  wifli  their 
judges  to  be  independent.     One  or  two  obfcrva- 
tions  will  prove  their  opinion  on   this  point.     All 
the  dates  in  the  Union  have  in  t^eir  feveral  confti- 
tutions  made  their  judges  independent.     The  peo- 
ple at  large  in  every  ftate,  having  fent  members  to 


248 

their  refpe^iivc  conventions,  thofe  conventions  ha- 
ving fixed  the  conditional  durability  of  office  in 
their  judges,  and  the  people  uniformly  acquicfcing 
under  their  fyfbems,  afford  fufficient  evidence  of  the 
public  fentiment.  Bcfidcs,  in  the  cafe  of  Mr. 
Chief  Juflice  Jay,  when  appointed  envoy  extraor- 
dinary to  the  court  of  Great  Britain  ;  was  not  op- 
pofition  to  the  appointment  echoed  from  one  end 
of  the  continent  to  the  other  ?  That  the  example 
was  dangerous,  it  put  the  judges  under  the  influence 
of  the  executive  ;  that  although  the  profpeft  of  an 
honorary  appointment,  within  the  gift  of  the  Prefi- 
dent,  was  remote,  yet,  it  might  influence  and  leflisu 
their  independence.  If  then  the  people  were  fo 
alive  and  quick  in  feeling,  when  the  caufes  of  alarm 
were  fo  remote  and  contingent ;  what  will,  what 
raufl;  be  their  opinion,  when  they  find  out,  that  the 
judges,  from  being  independent  by  holding  their 
offices  during  good  behaviour,  are  reduced  to  the 
fervile  fituation  of  holding  the  office  at  the  will,  at 
the  caprice,  of  a  legiflature  ?  Is  the  public  mind 
prepared  for  a  fliock  of  this  kind  ?  Shall  the  legif- 
lature with  a  ftrong  arm,  and  by  an  afliimcd  power, 
deftroy  their  independence,  and  thereby,  their  cxif. 
tence,  as  one  of  the  pillars  of  the  conilitution  !  In 
this  fituation  of  your  judiciary  will  the  Hrearas  of 
juflice  flow  equally  to  the  habitation  of  the  rich  and 
the  cottage  of  the  poor  ?  No  man  who  knows  hu- 
man nature,  will  anfwcr  in  the  affirmative. 


249 

i^et  us  now  for  a  moment  examine  the  confc- 
quetices  of  giving  a  negative  to  the  prefent  refolu- 
tion.  If  the  refolution  is  not  agreed  to  xvhat  arc 
the  dreadful  and  fatal  cojafcquences  that  would 
follow  ?  I  anfwer,  the  worft  that  can  poffibly  hap- 
pen is  the  annual  payment  of  about  thirty  thoufand 
dollars,  the  falaries  of  all  your  circuit  court  judges^ 
who  do  the  whole  bulinefs  of  thcfe  circuits  through- 
out all  parts  of  the  Union.  Their  number  will  nei- 
ther impede  juftice,  nor  injure  the  principle  or  exe- 
cution of  it.  It  is  not  in  the  controverfy,  the  right 
of  the  legiflature  to  arrange  and  modify  all  the 
courts  of  jufllce,  fo  as  to  make  them  beft  anfwer 
the  diftribution  of  juftice  with  convenience  to  the 
citizens  j  the  whole  judiciary  can  be  fyftematifed 
and  put  on  the  bed  and  moft  refpe<!^able  footing, 
without  violating  your  conftitution.  If  the  circuit 
court  judges  are  too  numerous,  fay  in  your  revifing 
law,  when  vacancies  happen,  that  fuch  vacancies 
Ihall  not  be  filled  up,  until  the  whole  are  removed, 
or  as  many  of  them  as  it  may  be  necelTary  to  remove. 
Thus  the  evil  would  be  continually  remedying  it- 
felf,  and  at  no  very  remote  period  would  be  totally 
removed,  and  that  without  any  interference  with 
the  conftitution.  ''  '^-^-f*^ 

On  the  other  hand,  fliould  the  refolution  bie 
carried  ;  what  are  the  evils  that  would  refult  ?  Your 
judges  in  that  cafe  would  hold  their  offices  at  the 
will  of  the  legiflature,  and  be  their  mere  creatures, 
fubfervient  to  all  their  whims,  caprice,  and  party 


250 

fpirit,  would  ceafe  to  be  a  check  or  barrier,  bcfwcen 
them  and  the  people,  in  cafes  of  unconflitutional  afts 
and  abufe  of  power  ;  it  would  alfo  produce,  agree- 
able to  the  courfe  of  human  nature,  a  fervile  difpofi- 
tion,  which  by  degrees  would  enervate  the  mind,  and 
completely,  in  procefs  of  time,  deftroy  that  manly  in- 
dependence and  firmnefs,  fo  cflential  to  an  upright 
and  good  judge. 

If  then  the  evils,  as  I  have  ftated,  would  be 
greater  from  adopting  the  refolution,  than  thofe 
that  would  refult  from  palling  a  negative  on  it  ;  and 
we  add  to  that  balance,  at  lead  the  doubt  of  its  be- 
ing againft  the  conftitution  ;  and  that  this  doubt  is 
well  founded,  is  evident,  from  the  nearly  equally  di- 
vided opinions  of  the  members  within  the  walls  of 
the  Senate,  and  by  the  fenciments  of  thoufands 
throughout  the  United  States  of  the  ablefl  ftatef- 
men  and  belt  citizens.  Let  us  then,  on  this,  at  leall 
precarious  and  doubtful  ground,  tread  light  and  flep 
with  caution  ;  for  to  deftroy  the  independence  of  the 
judges,  is  wounding  the  conftitution  in  a  vital  part, 
it  is  removing  one  of  the  main  pillars  that  fupports 
it.  If  we  begin  to  infringe  the  conllitution  in  one 
inflance,  we  may  in  another,  and  by  flow  and  al- 
mofl:  imperceptible  degrees,  alter  all  the  great  and 
leading  principles  of  it,  until  at  lad,  the  fubftance 
would  be  gone,  and  the  fliadow  only  remain  ;  for 
like  a  body  of  water,  if  one  drop  makes  its  paffage, 
the  whole  ftream  will  foon  follow. 


251 


Mr.  CoLHouN  then  went  at  fome  length  into  a 
ftatement  of  the  defeats  which  he  perceived  in  the 
judiciary,  and  of  the  amendments  which  he  deem- 
ed it  expedient  to  make  ;  after  which  he  moved, 
that  a  committee  (hould  be  appointed,  to  enquire 
whether  any  and  what  amendments  were  neceffary 
in  the  judiciary  fyftem.  This  was  rejefterl  by  the 
Vice-Prefident,  as  being  out  of  order  ;  whereupon 
Mr.  Dayton  moved  that  the  word  repealed  in  the 
original  motion  fhould  be  ftruck  out,  and  the  words 
revised  and  amended  be  inferted.  On  this  the 
Yeas  and  Nays  were  taken,  and  flood  as  follow  : 


Meflrs.  Chipman, 
Colhoun, 

Dayton, 
D.  Forter, 
Jlillhoufe, 
Howard, 
J.  Mafon, 


YEAS. 

Meflrs.  Morris, 
Olcott, 
Sheafe, 
Tracy, 
Wells, 
White. — 13. 


Meflrs.  Anderfon, 
Baldwin, 
Breckenridge, 
Brown, 
Cocke, 
Ellery, 
T.  Fofter, 
Franklin, 


NAYS. 

Meflrs.  Jackfon, 
Logan, 


S.  T.  Mafon, 

Nicholas, 

Stone, 

Sumpter, 

Wright--15. 


Kk 


254 

The  main  qucftion  was  carried  by  a  fimilar  divi- 
fion,  and  Meffrs.  Anderfon,  Baldwin,  and  Brecken- 
ridge,  were  appointed  a  committee  to  bring  in  a 
bill. 

On  Friday  the  2 2d,  Mr.  Anderson  brought  in 
the  bill,  which  was  read,  and  a  fecond  reading  or- 
dered. 

On  Monday,  the  25th,  it  was  read  a  fecond 
time,  and  made  the  order  of  the  day  for  Tuefday, 
the  26th,  when  Mr.  Dayton  moved,  "  That  it 
{hould  be  referred  to  a  fele£t  committee,  with  iu- 
ilruftions  to  confider  and  report  the  alterations 
which  may  be  proper  in  the  judiciary  fyftem  of  the 
United  States  ;  and  the  provifion  to  be  made  re- 
fpe«Sting  the  judges  of  the  circuit  courts,  eftabliihed 
by  the  a<5l  of  the  13th  of  February,  1801,  in  cafe 
the  faid  aft  (hall  be  repealed."  On  this  the  Yeas 
and  Nays  were  taken,  and  flood  as  follow : 

YEAS. 

Meffrs.  Chipman,  Meffrs.  Ogden, 

Dayton,  Olcott, 

D.  Fofter,  Rofs, 

Hillhoufe,  Shcafe, 

Howard,  Tracy, 

J.  Mafon,  Wells,  and 

Morris,  White— 14. 


25: 


NAYS. 

Mcf&s.  Andcrfon, 

Meflrs, 

.  Franklia, 

Baldwin, 

Jackfon, 

Breckenrid^ 

jc, 

Logan, 

Brown, 

S.  T.  Mafon, 

Cocke,' 

Nicholas, 

Colhoun, 

Stone, 

Ellery, 

Sumpter,  and 

T.  Fofter, 

Wright — 1 6. 

On  the  queftion, 

fliall  the  bill 

I   go  to  a  third 

reading,  the  Yeas  and  Nays  were 

alfo  taken,  and 

flood  as  follow : 

YEAS. 

MeiTrs.  Anderfon, 

Meflrs, 

.  Jackfon, 

Baldwin, 

Logan, 

Breckenridge, 

S.  T.  Mafon, 

Brown, 

Nicholas, 

Cocke, 

Stone, 

Ellery, 

Sumpter,  and 

T.  Fofter, 

Wright — 15. 

Franklin, 

NAYS. 

Meflrs.  Chipman, 

Meflrs, 

.  Ogden, 

Colhoun, 

Olcott, 

Dayton, 

Rofs, 

D.  Fofter, 

Sheafe, 

Hillhoufe, 

Tracy, 

Howard, 

Wells,  and 

J.  Mafon, 

White — 15. 

Morris, 

254 

The  Houfe  being  equally  divided,  the  bill  was 
carried  to  a  third  reading  by  the  vote  of  the  Vicc- 
Prefident. 

On  Wednefday  the  27th  January,  after  filling 
the  blanks, 

Mr.  Dayton  faid,  that  although  he  had  been 
defeated  in  two  attempts  to  arrelt  the  progrefs,  or 
turn  the  courfe  of  this  bufincfs,  he  was  not  however 
fo  far  difcouraged  as  to  be  deterred  from  making 
one  other.  It  would,  he  faid,  be  recolk£led  that 
all  which  had  been  afked  by  him  and  by  the  oppo- 
fers  of  this  meafure,  in  the  firft;  inftauce,  was  to  at- 
tempt fome  modification  of  the  law  propofed  to  be 
repealed  ;  but  this  was  refufed  them.  It  was  then 
propofed  that  both  parties  fhould  unite  their  labours 
with  a  view  to  revife  and  amend  the  wholejudicia* 
ry  fyflem  ;  but  this  alfo  was  denied  to  them  Yef- 
terday  he  had  offered  an  amendment  combining 
both  objects ;  but  it  was  negatived.  He  was  en- 
couraged, however,  to  renew  it,  with  a  little  varia- 
tion, even  in  this  late  Oage  of  the  bill,  becaufe  he 
had  learned  that  it  had  not  been  perfcftly  heard 
and  underflood  by  one  cf  the  gentlemen  who  had 
voted  againft  it.  He  took  leave  to  remind  honour- 
able members  that  thcfe  conciliatory  motions  had 
been  rejected  by  a  majority  of  one,  or  at  mod  two 
only,  and  that  of  courfe  the  Senate  were  alraoft 
equally  divided. 

Mr.  D.  concluded  by  faying,  that  it  could  not 
come  to  good,  if  meafurcs  admitted  by  fome  to  be 


255 

bold  and  violent,  and  believed  by  many  others  to  be 
unconftitutional,  ihould  be  carried  by  a  bare  majo- 
rity, and  he  trufted,  therefore,  that  this  proportion 
would  now  fucceed. 

He  then  moved  that  the  bill  be  referred  to  a 
felcft  committee,  with  inftruftions  to  conilder  and 
report  the  alterations  which  may  be  proper  in  the 
judiciary  fyftem  of  the  United  States. 

Mr.  CoLHouN  begged  to  be  indulged  with  the 
exprellion  of  a  few  ideas,  which  he  confidered  the 
more  important  as  the  bill  was  likely  to  be  carried 
by  a  cafling  vote.  He  had  before  thought,  and  he 
dill  thought,  the  belt  way  was  to  appoint  a  com- 
mittee to  prepare  a  fyflem  that  would  accommo- 
date the  varying  ideas  of  gentlemen.  He  had  voted 
yefterday  againfl  the  propofition  made,  under  the 
impreflion  that  provifion  was  thereby  to  be  made 
for  the  judges.  1  his  he  thought  quite  premature,  be- 
fore it  was  known  that  the  aft  would  be  repealed. 
As  it  was  at  any  rate  doubtful  whether  one  half 
the  Senate  did  not  think  the  meditated  repeal  a 
violation  of  the  conflituiioti,  he  thought,  for  har- 
mony, it  was  beil  to  reer  the  bill  to  a  feleft  com- 
mittee. The  feffion  would  be  two  or  three  months 
longer,  and  if  the  report  made  by  the  committee  (hould 
not  prove  agreeable,  there  would  be  time  enough 
to  bring  in  another  bill.  I'his  attempt  to  harmo- 
nize all  parties  can  do  no  injury,  while  on  the  other 
hand,  a  fyftem  might  be  framt-d  that  gentlemen  may 
be  better  pleafed  with  than  even  a  repeal  of  the  aft. 


256 

Mr.  Nicholas  faid,  he  flattered  himfelf  the 
fubjeft  was  well  underftood  by  the  Senate.  What 
IS  now  the  quefiion  ?  The  fanfie  that  has  been  fo 
often  decided.  Gentlemen  in  oppofition  have  faid, 
amend,  but  do  not  repeal.  He  could  fay  that 
every  vote  of  that  houfc,  in  every  flage  of  the  dif- 
cuffion,  had  faid  repeal,  and  do  not  amend.  He 
believed  the  old  fyflem  required  but  little  amend- 
ment. It  was  the  bed  fuited  to  the  interelts  of  the 
United  States,  and  of  the  dates.  The  law  of  the 
lafl  feflion  was  in  fact  a  bar  to  improvement.  Gen- 
tlemen fay  why  not  provide  for  thefe  judges  as  you 
have  provided  for  a  judge  of  the  fupreme  court  ? 
He  would  reply  that  the  lafl  operation  was  fimple 
and  eafy  of  execution;  but  how  were  we  in  this  new 
mode  to  get  rid  of  the  circuit  judges  without  hav- 
ing thefe  courts  in  one  part  of  the  Union,  and  not 
in  another  ? 

The  gentleman  from  New-Jerfey,  ha^  faid,  this 
meafure  is  admitted  to  be  bold  and  violent.  By 
whom  is  it  admitted  ?  Not  by  me,  or  gentlemen 
who  think  with  me.  As  to  a  regard  to  the  conftitu- 
tion,  there  is  no  man  here,  let  his  boaft  of  federal- 
ifm  be  what  it  may,  that  can  take  ftronger  ground 
than  I  hold.  Gentlemen  profefs  a  great  refpeft 
for  the  conflitution  ;  but  our  principles  are  not  to 
be  evidenced  by  mere  profcfTions.  I'hey  are  to  be 
evidenced  by  the  fcries  of  our  actions.  My  con- 
duft,  faid  Mr.  N.  fince  the  formation  of  the  confli- 
tution to  this  day,  is  known  by  thofe  who  know 


257 


>■% 


mc,  as  well  as  the  conduft  of  gentlemen  is  known 
by  thofe  who  know  them.  To  the  people  I  appeal. 
I  am  not  to  be  alarmed  by  the  tocfin  of  hoftility  to 
the  conflitution  that  is  fo  loudly  founded  in  our  ears. 
1  hopcj  fir,  we  fliall  have  the  queftion. 

The  queftion  was  then  taken   on  Mr.  Day- 
ton's motion  by  Yeas  and  Nays,  as  follows : 


YEAS. 


feffrs.    Colhoun, 

Ogden, 

Chipman, 

Olcott, 

Dayton, 

Rofs, 

D.Fofter, 

Sheafc, 

Hillhoufe, 

Tracy, 

Howard, 

Wells,   and 

J.  Mafon, 

White. — i«j. 

Morris, 

NAYS. 

Meflrs.   Anderfon, 

Jackfon, 

Baldwin, 

Logan, 

Breckenridge, 

S.  T.  Mafon, 

Brown, 

Nicholas, 

Cocke, 

Stone, 

Ellery, 

Sumpter,  and 

Th.  Fofter, 

Wright. — 15. 

Franklin, 

There  beijig  an  equal  vote,  the  Vice-Presi- 
dent declared  himfelf  in  the  affirmative,  and  the 
reference  was  carried. 


258 

The  Vice-President,  faid  he  felt  dlfpofcd  to 
accommodate  gentlemen  in  the  expreflion  of  their 
wifties,  the  fincerity  of  which  he  hi.d  no  reafon  to 
queftion,  to  ameliorate  the  provifions  of  the  bill, 
that  it  might  be  rendered  more  acceptable  to  the 
Senate.  He  did  this  under  the  impreflion  that  their 
objeft  was  fincere.  He  fliould,  however,  difcounte- 
nance  by  his  vote,  any  attempt-  if  any  fuch  fhould 
be  made,  that  might  in  an  indirect  way,  go  to  defeat 
the  bill. 

The  bill  was  committed  to  MefTrs.  Baldwin,  Col- 
houn,  Dayton,  Anderfon,  and  Morris. 

On  Monday,  the  i (l  of  February,  Mr.  Breck- 
EN RIDGE,  gave  notice,  that  he  fliould,  the  next 
day,  move  to  difcharge  the  committee. 

On  Tuefday,  the  2d  February,  Mr.  Ross,  pre- 
fented  a  memorial  of  the  Philadelphia  bar,  againfl 
the  repeal.  I  e  obferved,  that  it  was  not  his  inten- 
tion to  embarrafs  the  motion  of  which  notice  had 
been  given,  by  moving,  in  the  prefent  flage  of  the 
bufmefs,  a  reference  of  the  memorial  to  the  com- 
mittee now  propofed  to  be  difcharged.  He  offered 
it,  that  the  Senate,  having  before  them  information 
of  importance,  from  a  number  of  refpeftable  men, 
belonging  to  both  the  parties  which  divide  the 
country,  might  give  due  weight  to  the  fads  which 
they  allege.  The  opinions  expreffed  were  unani- 
mous, and  fl:rongly  enforced  by  a  letter  r.ccompany- 
ing  the  memorial,  addrefled  to  his  colleague  and 
himfelf,  on  behalf  of  the  bar,  by  Meffrs.  Dallas  and 


259 

M'Kean,  the  one  the  attorney  of  the  drflrkl,  and 
the  other  the  attorney-general  of  Pennfylvania. 

Mr.  Breckenridge.  It  will  be  recollected, 
that  I  yefterday  gave  notice  I  iliould  move  to-day  to 
difcharge  the  feleft  committee,  to  whom  the  judi- 
ciary bill  was  laft  week  committed.  As  there  ar$ 
fome  gentlemen  now  in  the  Senate,  who  were  not 
prefent  during  any  part  of  the  difcuffion  which  that 
fubjeft  met  with,  I  deem  it  proper  to  fay  a  few 
words  as  to  its  progrefs,  and  the  real  fituation  in 
which  it  now  (lands. 

Early  in  January,  this  difcuffion  commenced  on 
a  motion  for  the  unqualified  repeal  of  the  judiciary 
law  of  the  lad  feffion.  After  many  day's  debate, 
and  at  the  moment  when  thequeftion  was  about  to 
be  put,  an  attempt  was  made  to  transform  it  into  a 
motion  for  amendment.  This  was  negatived.  The 
refolution  was  paft,  a  bill  was  brought  in,  and  car- 
ried to  the  fecond  reading,  when  another  attempt  was 
made,  by  a  motion  to  recommit  it  to  a  feleft  com- 
mittee. This  was  alfo  negatived.  The  bill  was 
then  ordered  to  a  third  reading,  and  on  the  quef- 
tion  for  its  palTage,  the  fame  motion  was  again 
made  for  its  commitment  to  a  feledb  committee, 
and  carried  by  the  carting  vote  of  the  chair.  la 
this  fituation  it  now  refls. 

During  the  whole  difcuffion,  thofe  in  favour  of 
the  repeal  have  uniformly  argued  and  voted  againfl 
any  thing  like  amendment.  1  hey  over  and  again 
declared,  that  they  would  not  confent  to  any  amend- 

Ll 


260 

ments  in  the  judiciary  fyftcm,  till  that  law  was  re- 
pealed. That  they  confidered  its  exiftence  as  an 
infuperable  bar  to  all  amendments,  and  that  indeed 
the  only  great  amendment  they  wifhed  for,  at  this 
time,  was  a  repeal  of  that  law ;  the  obnoxious  ten- 
dencies of  which  were,  cancer-like,  to  be  only  cer- 
tainly removed  by  cutting  it  out  by  the  roots. 

On  the  other  hand,  the  gentlemen  in  oppofition 
contended,  that  the  law  was  enacted  with  great  de- 
liberation and  wifdom,  that  it  was  eflential  to  the 
due  adminiflration  of  juflice,  and  to  the  peace  of  the 
nation,  that  it  requires  no  amendment,  that  it  can- 
not be  amended,  for  that  even  admitting  the  courts 
and  judges  erefted  by  that  law  were  ufelefs  and 
burthenfome,  yet.Congrefs  have  not  the  power  to 
put  down  thofe  courts  and  judges,  becaufe  they  arc 
in  under  the  conflitution.  We  are  therefore  at  ifTue 
upon  the  fimple  point,  fhall  this  law  be  repealed  or 
not. 

What  then,  I  afk,  in  this  ftate  of  things,  can  be 
expelled  from  the  labours  of  the  committee  ?  Can 
they,  on  the  one  hand,  forward  the  views  of  thofe 
who  carried  to  a  third  reading,  a  bill  to  repeal  a 
certain  aft  which  they  confider  as  fundamentally 
vicious,  by  attempting  to  amend  that  aft  ?  Or,  on 
the  other  hand,  can  they  forward  the  views  of  thofe 
who  fay  that  law  was  the  refult  of  experience  and 
wifdom,  that  it  wants  no  ameftdment,  nay,  that  you 
cannot  fnake  zny  amendment,  becaufe  it  is  faftened 
on  the  nation  by  the  conflitution  ?  Can  they,  I  fay. 


261 

«xpeft  to  reconcile  two  fuch  contradiftory  and  op- 
pofite  opinions — opinions  at  variance  in  principle, 
and  not  in  detail.  They  can  not ;  and  it  is  impossible 
that  thofe  gentlemen  can  seriously  exped  it. 

This,  Mr.  Prefident,  is  a  great  conteft  upon  a 
constitutional  principle.  A  committee  ought  not,  and 
ean  not  fettle  principles.  On  the  floor  of  this  Houfe 
alone,  can  thofe  principles  be  fettled,  which  furniih 
the  ground-work  of  legiflatioa.  Details  only  are 
proper  for  committees.  Sir,  we  will  not  abandon 
this  queftion  of  principle  ;  it  shall  not  be  fufFered 
to  efcape  us,  or  be  entangled  in  forms — //  must  be 
settled.  We  will  have  no  modification  of  this  bill. 
Gentlemen  must  on  this  floor  meet  the  plain  unqua- 
lified question  of  repeal.  And  in  order  that  we  may 
be  enabled  to  do  fo,  1  now  move  you  that  the  com- 
mittee to  whom  the  bill  was  referred,  on  Wednef- 
day  laft,  be  difcharged  from  proceeding  further 
therein.  The  bill  will  then  be  ready  for  its  pafl^age, 
and  the  whole  merits  of  the  quefl;ion  open  for  dif- 
cuflTion. 

Mr.  Dayton.  I  (hould  not  have  rifen  fo  foon, 
if  the  honourable  member  from  Kentucky  had  been 
more  correal  in  the  information  he  has  given  to  the 
Senate.  It  mufl:  be  recollefted,  fir,  very  contrary 
to  that  gentleman's  ftatement,  that  neither  the 
firft,  fecond,  nor  third  motions  made  on  the  fubjeft, 
were  the  fame.  The  firfl;  motion  was  to  revife  and 
amend,  inftead  of  repeal,  the  aftof  lad  feflion  :  the 
fecond  was  for  revifing  the  whole  judiciary  fyfl:era. 


262 

and,  connected  with  it,  was  a  propofition  to  make 
provifion  for  the  judges,  if  they  fliould  be  difmifled  ; 
this  latter  part  was  difapproved  of  by  one  honour- 
able gentleman,  who  afterwards  voted  with  us,  and 
the  motion  was,  in   confequence,  negatived :   the 
third  differed  from  the  fecond   by  the  omiffion  of 
that  claufe,  fo  as  to  be  agreeable  to  that  honourable 
member,   and  was  confequently  agreed  to,  and  a 
committee  accordingly   appointed.     To  difcharge 
this  committee  is  the  objeft  of  the  prefent  morion, 
and  I  a/k,  Mr.  Prefident,  whether  it  is  ufual,  whe- 
ther it  is  proper,  whether  it  is  even  decent  to  make 
fuch  ufe  of  a  majority  fuddenly  acquired  by  the  ca- 
fual  acceilion  of  a   fmgle  member.*    Where,  or 
when  has  an  inftanceof  this  fort  ever  before  occur- 
red ?  It  is  abruptly  propofed  to  diicharge  a  com- 
'  mittee  to  whom  was  referred  one  of  the  mod  im- 
portant fubjefts  of  legiflation,  whilft  they  are  aftive- 
ly    engaged   in   the   bufmefs  committed    to  them, 
difpo''ed  to  perform  it  with  all  poiTible  expedition, 
without  their  having  a/ked  to  be  difmiffed.     Is  it 
poflible  that  fo  extraordinary  a  meafure  can  receive 
fupport  ?    Will  there  not  be  found  among  the  ad- 
vocates of  the  original  refolution,  one,  at  lead,  to 
give  it  a  decided  difapprobation  ?  Will  not  confide- 
rations  of  delicacy  towards  the  committee,  or  a  fen- 

•  Mr.  Bradley  ot  Vermont  had  arrived »  and  he  was  kno\v«  to 
be  ef  the  mimfterial  |)»rty,  so  tliat  tliey  had  a  majority  of  one, 
even  had  Col.  Howard,  who  was  momenily  cxpcftcd,  have 
been  in  his  place. 


.  263  "* 

liment  of  refpefi:  for  the  majority  who  ordered  the 
commitment,  or  at  lead:  a  regard  for  appearances, 
prompt  honourable  gentlemen  to  fcout  fuch  a  propo- 
fition  ?    Ought  not  the  honourable  mover  himfelf 
to  be  induced  to  withdraw  it  ?    Were  he  a  man  of 
any  moderate  ihare  of  ambition,  he  might  furely  be 
contented  with  the  agency  he  has  already  had  in 
this  bufmefs.     He  was  the  author^  at  leaft  the  osten- 
sible author,  of  the  projeft — he  was  the  nwuer  of 
the  refolution — the  mouth-piece  of  his  party — and  a 
tnember  of  the  committee  who  prepared  tlie  repeal- 
ing bill.    Whilft  he  and  his  coadjutors,  in  the  holy 
Work  of  deftruftion,  were  confulting  together  upon 
the  death-warrant  of  our  judiciary  fyftem,  and  with 
it,  of  the  conllitution,  their  folemn  deliberations 
were  not  difturbed,  no  attempt  was  made  to  catch 
at  a  majority  for  the  purpofe  of  difcharging  that 
committee,  nltho*  there  were  times  when  a  majority 
might  have  been  found  unfriendly  to  it.     On  the 
contrary,  they  were   fuffered   to  take  their  own 
time  to  mature  and  report  tlieir  bill.     The  difcuf- 
fion  of  its  merits  has  been  too  ample  and  too  recent 
to  be  forgotten.     It  will  be  recollefted  that  it  was 
fuggcfted,  as  our  laft  hope,  that  fomcthing  further 
ought  to  be  attempted,  and  that  it  was  more  than 
poflible  that  fome  expedient  might  be  propofed,  or 
fome  fyftera  devifed,  which  would  he  acceptable  to 
a  majority,  and  thus  render  a  decifion  of  the  confli- 
tutional  quellion  unneceffary.     It  was  further  inti- 
mated that  the  aft  itfelf  afforded  fuch  a  fcalFolding 


264 

as  wouhd  be  ufeful  to  enable  us  to  build  up  a  more 
perfe<^  flrufture  of  jurifprudence ;  but,  if  we  began 
by  dcmolifhing  it,  inllead  of  deriving  aid  from  the 
materials  of  which  it  was  compofed,  it  would  be- 
come a  heap  of  rubbifli,  and  fatally  obftruft  our 
progrefs.  Thefe  fuggeftions  were  fo  much  liflened 
to,  and  approved  of,  as  to  produce  the  appointment 
of  a  committee,  with  extenfive  powers  *'  to  revifc 
and  amend  the  whole  judiciary  fyflem.'* 

It  was  indeed  very  unfortunate,  that  the  gen- 
tleman from  Kentucky,  the  honourable  mover  of 
this  propofition,  had  not  been  chofen  on  that  com- 
mittee. I  well  remember  the  anxiety  fhewn  by 
the  friends  of  that  honourable  member  on  that  oc- 
cafion,  and  his  own  great  mortification  at  the  dif- 
appointment.  I  am  very  forry  it  has  carried  him  to 
fuch  an  excefs,  and  led  him  to  make  the  extravagant 
propofition  on  your  table.  And  yet,  Mr.  Prefident, 
one  would  have  thought,  that  without  this,  he  had 
already  rendered  himfelf  fufliciently  prominent 
and  confpicuous.  He  has  been  the  firil  and  chief 
a£l:or  in  thefe  fcenes  of  legiflative  tragedy,  but  he 
feems  to  think  that  the  goodly  work  of  deftru£tion 
cannot  go  on  with  fullicient  certainty  and  rapidity, 
if  his  agency  be  difpenfcd  with  in  any  ftage  of  the 
bufinefs,  or  his  deftroying  arm  be  arrcfled  even  for 
a  moment. 

I  trufl:  fir,  that  that  gentleman's  motion  for  dif- 
charging  the  committee  will  be  rejected,  and  that 
we  fliall  not   find  in  its  adoption  a  pradlical  com- 


265 


xncnt  on  the  conciliatory  language  of  the  Prefidcnt, 
which  had  been  fo  often  echoed  by  gentlemen  on 
that  fide  of  the  houfe. 

Mr.  Ross.  I  have  long  had  a  feat  in  this 
houfe,  and  this  is  the  firft  time  1  ever  heard 
a  motion  made  to  difcharge  a  committee,  un- 
lefs  by  a  member  of  the  committee  itfelf.  And 
what  is  the  reafon  affigned  ?  Difference  of  opi- 
nion on  principle.  With  whom  doss  this  differ- 
ence exift  ?  Surely  not  with  one  political  par- 
ty in  this  country,  as  dlflinguifhcd  from  another, 
for  we  have  juft  heard  the  opinions  of  gentlemen  of 
high  talents,  and  the  firm  adherents  to  the  fame  po- 
litics with  thofe  of  the  honourable  gentleman  from 
Kentucky,  that  the  fyftem  is  fufceptible  of  amend- 
ment. Nay,  that  the  law  which  he  wiflies  to  re- 
peal, is,  in  effeft,  a  very  important  amendment  of 
the  old  fyflem.  Shall  we  then  fay,  that  it  is  not 
fufceptible  of  amendment?  Are  gentlemen  pre- 
pared to  decide  inftantaneoufly,  without  information 
or  refle(ftion,  againft  opinions  fo  refpeftable  ?  Sure- 
ly, this  is  not  legiflating  with  the  cuftomary  cau- 
tion. 

Are  gentlemen  prepared  to  fay  there  is  no  mid- 
dle ground  ?  The  wifefl;  men  deliberate  the  long- 
eft.  Why  not  wait  till  the  committee  report  ? 
Why  not  hear  what  they  offer  ?  If  it  be  bad,  re- 
ject it,  but  firft  hear.  What  appearance  will  this 
hafty  procedure  have  ?  One  day  the  Senate  are 
equally  divided,  and  by  a  caution  and  moderation 


266 

which  will  not  foon  be  forgotten,  the  bill  is  refer- 
red Shortly  afterwards  before  the  eommiitee 
can  poffibly  prepare  a  report,  although  opinion  is 
ftrengthening  on  the  fide  of  thofe  who  voted  for 
a  commitment,  yet  all  modification,  and  all  chance 
of  modificanon,  is  rejeftcd.  The  fubjeft  is  to  be 
brought  forward  all  at  once,  in  general  terms,  to 
a  hafty  decifion.  I  cannot  confider  this  33  wife 
1  hope  the  houfe  will  proceed  with  caution.  I 
hope  they  will  not  inconfiderately  advance,  by  ra- 
pid fteps,  to  a  point  that  may  be  attend.d  with 
^ngerous  confequences. 

Mr.  Breckenridge.  It  is  fald  that  what  I 
have  done  ihould  fatisfy  a  moderate  man,  and  that 
my  ambition  fliould  be  fatiated.  But  what  ambi- 
tion can  /  feel  ?  What  profpefts  of  ambition  lie 
before  ;«^,  in  propofing  the  repeal  of  this  law.  In- 
ftead  of  opening  profpe61:s  of  office  to  me,  the  effeft 
is  diredly  the  reverfe,  by  deftroying  thofe  very  of- 
fices which  I  might  expect.  No,  fir,  my  ambition 
on  this,  as  I  truft  it  will  be  on  all  other  occafions,. 
is  to  put  down  a  fyftem  fundamentally  pemicious. 
I  have  flared  the  grounds  on  which  I  deem  it  (Oy 
and  I  am  ready  to  meet  the  fentiraents  of  ray  coun- 
try. 

We  arc  now  told,  that  we  arc  to  fufpend  this 
bufinefs  for  a  (liort  time,  to  (lop  us  from  fealing  the 
death-warrant  of  the  con  tiiuuon.  Let  me  tell 
gentlemen,  however  they  may  try  to  excite  terror, 
iiich  exprcflions  pafs  by  my  ear  like  the  idle  wind. 


267 

and  leave  not  a  trace  behind.  Where  is  the  pre- 
cipitation they  talk  of?  Did  not  this  difcuffion  be- 
gin on  the  8th  of  January,  and  did  not  the  houfe 
travel  as  flow  as  it  could  ?  Have  not  gentlemen 
acknowledged  that  it  has  been  fully  and  deliberate- 
ly difcufled  ?  I  know  but  one  fubjeft  which  has 
been  fo  fully  difcufled.  What  can  this  fcleft  com- 
mittee do  ?  Have  gentlemen  anfwcred  my  argu- 
ments on  this  point  ?  If  our  opinions  on  the  constU 
tuiionaliiy  of  the  bill  are  fo  various  and  contradictory^ 
"what  can  we  cxpeft  from  the  magic  of  a  commit- 
tee ?  What  but  delay  ?  For  I  am  fure  gentle- 
men are  not  ferious  when  they  profefs  an  expe6la- 
tion,  that  the  report  will  furnifli  a  plan  of  accom- 
modation.     The  principle  must  he  settled  here. 

Mr.  Morris.  I  do  not  mean,  Mr.  Prefident,  to 
enter  now  into  the  merits  of  the  quefl:ion.  I  beg 
leave  merely  to  mention,  that  what  the  gentleman 
lafl:  up  was  pleafed,  when  he  firfl  rofe,  to  ftate  as 
fact,  for  the  information  of  thofe  who  were  not 
prefent  in  the  early  part  of  this  debate,  is  not  the 
faft.  One  half  indeed  of  what  he  fl;ated  is  true. 
It  is  true,  that  he  and  thofe  who  go  with  him 
would  liflen  to  no  amendment,  but  have  uniformly 
infifl:ed  on  a  direft  unqualified  repeal.  But  when 
he  aflTerts  that  this  fide  of  the  houfe  have  as  uni- 
formly contended  that  the  prefent  fyfl:em  is  perfeft, 
and  neither  requires  nor  admits  of  amendment,  I 
mufl;  take  leave  to  fay  this  is  not  the  fact.  I  fay, 
fir,  it  is  net  the  fact.    On  the  contrary,  it  has  been 

M  m 


268 

unequivocally  declared  by  every  member  who  fpokc 
on  this  fide  of  the  houfe,  that  the  law  may  be 
amended.  Nay,  we  have  repeatedly  called  on  our 
opponents  to  point  out  the  defefts,  and  avowed 
our  willingnefs  to  join  in  the  proper  remedies. 

That  gentleman,  lir,  tells  us,  we  muft  come  to 
the  fimple  queftion  of  repeal.  *'  IVe  f fays  hej  will 
"  have  no  modification  of  ^his  bill,  and  it  is  impoffi- 
"  ble  our  opponents  can  ferioufly  expeft  to  recon- 
"  cile  the  contradiftory  opinions.*'  Is  that  gen- 
tleman, then,  thckeeper  of  the  confciences  not  only 
of  one  half  of  this  houfe,  but  of  the  other  half  too  ? 
This  fu",  is  a  degree  of  prefumption  which  furpafles 
any  thing  I  ever  heard  of.  He  gets  up  and  fays, 
nothing  can  be  offered  which  he  and  his  friends 
will  approve  of.  And  then  he  goes  on  to  fay,  we 
cannot  expect  to  offer  any  fuch  thing.  Sir,  we  do 
expeft  it.  I  believe  a  fyflem  can  be  devifed  much 
better  than  either  the  old  or  the  new  one.  And  fo 
far  have  I  been  from  expreffmg  any  thing  like  an 
idea  that  the  prefent  fyftem  is  perfeft,  that  I  have 
uniformly  declared  the  contrary,  and  fo  indeed  have 
we  all. 

Did  not  an  honourable  member  near  me,  from 
Connecticut,  explicitly  declare  that  he  voted  againfl 
the  law  laft  fcflion,  believing  then,  and  ftill  believ- 
ing that  it  required  amendment.  I  could  go  on, 
and  cite  diftindly  every  member  who  has  fpoken 
on  this  fide  of  the  houfe  to  the  fame  effeC^.  Nay, 
fir,  what  was  the  language  of  the  gentleman  him- 


269 

fclf  the  other  day  ?  Did  he  not  farcaflically  tell 
us,  that  all  our  arguments  amounted  only  to  this, 
"  do  what  you  please  luith  thelaw^  but  fpare  !  Oh ! 
"  Sparc  our  judges !"  Surely  this  does  not  com- 
port with  the  ftatement  he  made  this  day,  and 
which  (I  repeat  it  again)  is  not  the  fact, 

Mr.  Breckenridge.  The  gentleman  laft  up, 
has  mifunderftood  what  I  have  faid,  and  built  all 
his  obfcrvations  on  it.  I  appeal  to  the  houfe,  whe- 
ther I  did  not  flate  in  fo  many  words,  when  I  made 
the  motion  to-day,  that  all  the  gentlemen  in  the 
oppofition  had  during  the  whole  courfe  of  the  dif- 
cuilion,  contended  that  the  courts  and  judges  could 
not  be  put  down,  and  therefore,  there  was  no  poffi- 
bility  of  the  committee's  forming  any  fyflem  to  meet 
the  wifhes  of  both  fides  the  houfe.  I  have  not  faid, 
at  lead  I  did  not  mean  to  fay,  that  all  the  gentle- 
men in  the  oppofition  were  oppofed  to  any  amend- 
ment in  the  fyftem.  I  well  remember,  what  fell 
both  from  the  gentleman  himfelf,  and  from  the 
honourable  member  near  him,  from  Connefticut. 

Mr.  S.  T.  Mason.  I  thought,  fir,  my  friend  from 
Kentucky,  had  flated  ground  that  would  not  have 
been  treated  fo  rudely  and  abruptly  by  the  gentleman 
from  New- York,  who  had  fo  fternly  reproached  him 
with  prefuniption.  My  friend  flated  truly,  that  the 
queftion  was  repeal  or  not  repeal,  and  it  was  oij.  tiiis 
question, that  the  house  have  so  often  decided.  As  to  the 
idea  of  the  gentleman  from  Pennfylvania,  that  to 
difcharge  the  committee  would  be  indecent  and  im- 


270 

proper,  I  really  don't  fee,  in  what  light  it  can  befo. 
Committees  are  the  mere  creatures  of  the  houfe, 
even  the  committee  of  the  whole,  and  nothing  is 
more  common  than  to  difcharge  them.  This  has 
been  often  done,  and  yet  no  complaint  has  been 
ever  before  heard  of  it. 

[Mr.  Mason  here  cited  an  inflance.  Two 
members  of  a  committee  were  prepared  to  report, 
the  third  member,  on  motion,  obtained  the  difcharge 
of  the  committee.]] 

Mr.  Anderson  faid,  as  he  was  one  of  the 
feleft  committee,  he  thought  it  his  duty  to  flate  to 
the  Senate,  that  it  appeared  to  him,  that  a  majority 
of  the  committee  would  only  agree  to  fuch  amend- 
ments of  the  fyftcm,  as  might  confifl:  with  keeping 
in  the  prefent  judges.  This  faft  would,  he  conceiv- 
ed, enable  the  Senate  to  judge,  whether  there  was 
any  profpe6l  of  a  report  which  would  prove  fatis- 
faftory. 

Mr.  Dayton  contefted  the  fa£t,  and  declared, 
that  though  one  of  the  committee,  he  knew  of  no 
fuch  decifion.  That  indeed  no  queflion  had  been 
taken  in  the  committee,  excepting  on  the  extent  of 
the  matter  referred  to  them.  It  had  been  doubted 
whether,  under  the  order  of  the  houfe,  they  could 
confider  the  fubjcft  of  juries,  and  the  committee 
had  determined  that  they  could. 

Mr.  Anderson  replied,  that  the  matter,  if  not 
brought  to  a  formal  queliion,  had  been  fufSciently 
diicufled  in  the  committee,  to  difcovcr  the  opinion 
of  the  majority. 


271 

Mr.  Tracy.  In  my  opinion,  Mr.  Prefident,  few 
committees  have  been  raifcd  for  more  important 
purpofes  than  that  now  propofed  to  be  difchargcd. 
It  has  been  raifed  for  the  purpofe  of  confidering  and 
reporting  fuch  amendments  as  it  may  be  expedient 
to  make  to  the  whole  judiciary  fyftem  of  the  Uni- 
ted States.  They  have,  as  yet,  fat  but  a  fliort 
time.  Too  fliort,  I  conceive,  to  decide  on  the  ob- 
jcfts  for  which  they  were  appointed,  with  fufficient 
deliberation,  and  with  that  maturity  of  thought 
which  is  due  to  them.  I  afk,  fir,  what  new  light 
has  been  Ihcd  on  the  fubjeft,  fmce  their  appoint- 
ment, to  alter  the  courfe  then  marked  out  by 
a  conftitutional  majority  of  the  Senate  ?  If  it  was 
proper  to  feek  fome  plan  of  accommodation ,  be- 
tween the  different  parties  then,  is  it  not  equally 
proper  now  ?  No  new  arguments  have  been  urg- 
ed. Are  gentlemen  determined,  in  no  poffible 
event,  to  change  their  opinions.  This  would  be 
improper.  Daily  inftances  occur  of  altering  our 
opinions.  I  hope  they  will  always  occur.  I  am 
fure  they  will  be  frequent  in  proportion  to  our  de- 
fire  of  adopting  correct  opinions  founded  on  truth. 
I  well  recoiled  what  fell  from  the  chair  on  that 
memorable  day,  that  if  the  objeft  of  gentlemen  ap- 
peared to  be  delay,  it  would  not  be  permitted,  but 
that  it  was  delirable,  when  the  houfe  was  fo  nicely 
balanced,  to  give  thofe  who  defired  it  an  opportu- 
nity to  devife  a  plan  of  accommodation.  Does 
this  pafs  by  the  gentleman's  ear  like  the  idle  wind  ? 


27fi 

If  gentlemen  wifli  to  make  their  plan  as  unexception- 
able as  poffible,  they  may  gratify  that  wifli  by  giv- 
ing us  an  opportunity  of  improving  it ;  and  then,  if 
our  amendments  are  not  agreeable,  they  can  rejcd: 
them. 

I  voted  for  the  aft  of  lafl:  feffion,  becaufe  I 
thought  it  a  good  one.  I  ftill  think  fo  :  but  I  de- 
clare that  for  the  good  of  my  country,  I  will  freely 
facrifice  all  my  pride  of  opinion.  I  will  immolate 
it  unhefitatingly,  whenever  that  good  fhall  require 
it.  Is  not  prudence,  is  not  caution  pre-eminently 
requifite  at  this  time  ?  Does  not  the  flate  of  par- 
ties— for  parries  there  are — require  that  we  fhould 
heal  inftead  of  irritating  their  wounds  ?  If  in  this 
body  one  party  adopts  a  meafure  to-day,  and  ano- 
ther party  obtains  by  accident  an  afcendence  to- 
morrow and  deftroys  it,  what  will  be  thought  of  our 
proceedings  ?  Is  this  the  dignified  mode  in  which 
the  bufmefs  of  legiflation  (liould  be  conduced  ?  I 
am  fure  gentlemen  will  not,  in  their  hearts,  fay 
that  it  is. 

Mr.  Morris.  I  beg  leave  now,  Mr.  Prefident, 
to  fay  a  few  words  on  the  merits  of  the  queftion, 
which  is  before  you.  From  the  explanation  given 
by  the  honourable  member  from  Kentucky,  I  per- 
ceive that,  in  the  hurry  of  elocution,  he  made  ufe 
of  words,  to  which  he  did  not  fufficiently  attend, 
and  which  conveyed  ideas  different  from  thofe  which 
he  meant  to  exprefs.  1  fhall  take  leave  therefore, 
to  flate  the  hiftory  of  this  bufincfs,  as  it  flands 
vouched  by  your  journals. 


27S 

After  the  motion  to  repeal  the  judiciary  law  of 
the  laft  fcflion  had  been  made,  and  when  the  quef- 
tion.  was  about  to  be  put,  it  was  moved  to  ftrikc 
out  the  word  ''  repeal'*  and  infert  the  words "  re- 
vife  and  amend.**  The  names  of  thirteen  members 
(land  recorded  in  favour  of  this  motion,  and  fifteen 
againfl:  it.  At  a  fubfcquent  period,  after  the  bill 
had  been  brought  in,  a  motion  was  made  to  refer 
it  to  a  committee,  to  confider  what  alterations  it 
might  be  proper  to  make  in  the  judiary  fyflem.  The 
Barnes  of  fourteen  members  ftand  recorded  in  fa- 
vour of  this  motion,  and  fixteen  againfl:  it.  Finally, 
on  the  third  reading,  it  was  moved  that  the  bill 
fliould  be  referred  to  a  felect  committee,  with  in- 
ftruftions  to  confider  and  report  the  alterations 
which  may  be  proper  in  the  judiciary  fyfl:em  of  the 
United  States.  It  appears  from  the  record,  that 
fifteen  members  voted  for,  and  fifteen  againfl:  this 
motion  ;  which  was  decided  by  you,  fir,  in  favour 
of  the  commitment.  Such  then  is  the  state  of  facts, 
and  fuch  the  recorded  opinions  of  the  members  who 
compofe  this  Houfe. 

Iheprefent  motion  is  to  difcharge  that  com- 
mittee ;  and  the  reafon  afilgned  is  two-fold.  Firli, 
that  the  mover,  and  his  adherents,  will  agree  to  no 
amendments ;  and  fecondly,  that  the  Houfe  must 
and  shall  decide  on  the  principle. 

Firfl:,  fir,  as  to  amendments,  it  has  been  afliired, 
that  none  can  be  propofed  which  will  cure  what  is 
called  the  radical  defect  of  the  prcfent  fyfl:era  ;  and 


274 

it  has  been  roundly  declared,  that  no  amendments, 
be  they  what  they  rnay^  will  be  adopted.  Being  one 
of  the  committee,  it  becomes  my  duty  to  declare, 
that  I  believe  great  amendments  may  be  made.  I 
believe  alfo  that  a  fyltem  can  be  devifed  which  will 
obtain  the  aflent  of  a  majority  in  this  Houfe  :  for, 
I  cannot  believe  that  the  honourable  mover  is  au- 
thorized, when  he  aflerts,  that  thofe  who  aft  with 
him,  will  liften  to  wo  am.endment.  That  they  will 
not  forego  their  intention  to  deflroy  the  law  of  laft 
feflion,  although  a  fyftera  lliould  be  propofed,  pre- 
ferable even  in  their  oivn  opinion,  to  that  which  is 
to  be  revived  by  the  propofed  repeal.  Such  pre- 
determination would  imply  an  influence  not  to  be 
prcfumed — befides,  fir,  the  Prefident  of  the  United 
States  has  particularly  called  our  attention  to  that 
part  of  the  judiciary  which  relates  to  the  formation 
of  juries.  Your  committee  will,  I  believe,  be  able 
to  offer  you,  in  that  refpe6l,  (as  well  as  in  others) 
a  valuable  improvement.  Can  it  be  polTible  that 
gentlemen  are  determined  to  shut  out  all  chance  of 
irnpro'uemcnt  ?  Sir,  I  cannot  believe  this ;  and, 
notwithftanding  the  honourable  member's  pointed 
affertion,  I  do  not  believe  it  eveii  as  to  himself.  I 
think  better  of  him.  I  canilot  admit  the  idea,  that 
he  would  on  the  floor  of  this  Houfe,  in  the  face  of 
his  own  confcience,  and  in  prefence  of  the  great 
Creator  of  the  Univerfc,  refme  his  assent  to  what 
he  knows  to  be  right.  It  cannot  be,  that  he  would, 
by  his  vote,  preclude  his  fellow-citizens  from  the 


275 

benefit  of  a  valuable  inflitution,  merely  to  gratify 
his  pride,  or  indulge  his  caprice.  Surely  no  mem- 
ber of  this  Senate  can  be  fo  lofl:  to  a  fenfe  of  duty. 
Refpefting,  as  I  do,  the  members  which  compofe  it,  [ 
cannot  permit  myfelf  to  believe  the  gentleman's  af- 
fertion. 

As  little,  fir,  can  I  acquiefce  in  the  propriety  of 
the  fecond  reafon  affigned  for  his  extreme  pertina- 
city. The  gentleman  fays,  we  must  decide  on  the 
principle.  Has  he  well  confidered  the  confequence  ? 
//  is  highly  dangerous  to  decide  on  abstrafl principles. 
Such  is  the  poverty  of  human  language,  and  fuch 
the  weaknefs  of  human  intellefl,  that  to  exprefs  pre- 
cifely  an  abftraft  propojQtion,  is  difficult  in  the  ex- 
treme. Men  of  bufmefs  have  been  taught  by  expe- 
rience, that  however  clear  their  conception  of  an 
abflrafl  idea,  when  they  venture  to  exprefs  it  (not- 
withflanding  the  moll  nice  fele6lion,  and  the  mod 
temperate  ufe  of  terms)  conclufions  will  frequently 
be  drawn  from  their  words,,  and  jullly  too,  which 
by  no  means  follow  from  what  paffed  in  their  minds. 
It  is  therefore  a  rule  with  confiderate  men,  never, 
when  it  can  be  avoided,  to  decide  on  abflraft  pro- 
pofitions.  Is  it  a  judge  ?  He  will  determine  on  fo 
much  as  may  be  neceffary  to  carry  the  cafe  before 
him,  and  no  more.  Is  it  a  legiflator  ?  He  will  make 
fuch  provifion  as  circumftances  require,  and  flop 
there.  It  is  not  wife  in  any  cafe,  much  lefs  in  a 
cafe  like  this,  to  decide  on  principles.  I  have  early 
called  on  gentlemen  to  confider  what  they  were 
Nn 


.276 

* 

about.  I  now  repeat  the  call.  I  carncftly  repeat  it. 
This  principle  on  which  a  decifion  is  fo  peremptori- 
ly demanded,  is  of  the  lad  importance.  I  will  ad- 
mit for  the  prefent,  that  our  opponents  may  be 
right  in  the  opinion  that  they  conflitutionally  poflefs 
the  power  which  we  conteft.  But  I  (hall  not  be 
charged  with  vanity  or  prefumption,  for  faying  that 
when  fo  many,  and  fuch  refpeftable  characters  as 
thofe  who  think  with  me,  have  fo  clearly  and  fo- 
lemnly  exprefl  their  conviftion  that  the  power  con- 
tended for  does  not  exift,  it  muft  be  admitted  that 
the  quellion  is  at  leafl  doubtful.  We  do  not  on 
this  occafion  alk  gentlemen  to  abandon  their  opi- 
nion much  lefs  to  adopt  our  opinion.  We  only  aik 
them  to  admit  that  it  is  a  cafe  of  doubt.  And  we 
afk  whether  it  be  wife  to  flir  a  great  conftitutional 
queltion  of  fuch  doubtful  nature.  It  goes  to  lengths 
which  have  not  been  duly  examined.  It  is  dangerous 
in  the  extreme.  And  where  is  the  cogent  neceffity 
which  could  alone  juflify  the  hazard  ?  I  am  fure 
gentlemen  will  acknowledge,  that  the  objeft  to  be 
obtained  is  comparatively  of  fmall  importance.  The 
cxpenfe,  which  was  at  iirft  infilled  on,  they  now  ac- 
knowledge to  be  trivial.  They  will  not  pretend  that 
jufticeis  not  as  well  adminiftered  under  the  prefent, 
as  under  the  former  fyftem.  Nay,  it  is  evident  from 
the  Memorial  of  the  Philadelphia  Bar,  which  lies  on 
your  table,  that  juftice  at  prefent  is  much  better  ad- 
miniftered.  This  memorial  ftates  to  you  fafts,  to 
which  the  mcmorialifls  arc  the  moll  competent  wit- 


S77 


iieflcs.  They  arc  men  of  high  charafter,  and  there- 
fore credible  witneiTes.  They  are  alfo  fair  and  un- 
biafled  witnefTes.  Had  they  been  all  of  the  fame 
political  complexion,  I  would  permit  gentlemen  of 
a  different  feft  to  withhold  their  confidence.  They 
might  then  have  fome  pretext  for  objefting  to  the 
teftimony.  But  this  is  not  the  cafe.  The  mofl  emi- 
nent counfcl  of  both  parties  join  in  cxpreifing  to  you, 
not  opinions  for  thofe  you  might  difregard  and  rely 
on  your  own,  but  fa6ts  ;  fafts  which  are  of  neceffity 
within  their  particular  knowledge.  And  from  thefc 
fa^ls  it  is  evident,  that  the  repeal  inliiled  on,  will 
(to  fay  the  leaft)  be  no  improvement.  Surely  then 
fir,  it  is  not,  it  cannot  be  wife,  under  fuch  circum- 
ftances,  where  nothing  valuable  can  be  gained,  to 
force  on  a  decifion  fo  important,  of  an  abllra6t  quef- 
tion,  doubtful  and  dangerous. 

I  Ihall  not  notice  what  has  palTed  in  the  com- 
mittee, or  the  opinions  delivered  there,  for  it  ap- 
pears to  me  improper,  and  the  more  fo  as  each  mem- 
ber can  deliver  his  own  opinions  for  himfelf  on  this 
floor.  On  this  floor,  therefore,  I  repeat  my  ferious 
conviftion,  that  various  improvements  can  be  made 
in  your  judiciary  fyfl:em,  and  that  your  committee, 
if  permitted,  will  have  the  honour  of  propofing  to 
your  confideration  feveral  amendments,  and  among 
them  fome  of  fuch  evident  utility,  that  your  adoption 
cannot  be  doubted. 

Called  on  therefore,  to  chufe  between  the  chance 
of  rendering  an  eflenfial  fervice  to  the  American 


278 

people,  and  the  danger  of  a  rafli  dccifion  upon  a 
high  and  important  qucftion  of  conftitutional  prin- 
ciple, 1  am  directed  by  prudence,  and  commanded 
by  duty,  to  prefer  the  former.  I  fliall  therefore  give 
my  voice  againft  difcharging  the  committee. 

Mr.  Baldwin  faid,  that  from  the  fubjeft  as  it 
now  flood  before  the  Senate,   he  was  difpofed  to 
vote   for  the  difcharge  of  the  committee,  and  that 
theSenate  fliould  itfelf  proceed  and  finifhthebufmefs. 
His  reafon   was,  that  his  own  mind  was  made  up 
to  come  to  a  decifion  on  the  main  queftion,  which 
has  been  for  a  month  under  difcuflion ;  and  he  had 
no  reafon  to  beheve  but  that  this  was  the  cafe  with 
the  other  members  of  the  Senate.     He  alfo  thought 
there  could  not  be  expe<fled  a  more  favourable  mo- 
ment  to  come  to  a  fair  and  proper  decilion.    He 
hoped  he  fliould  never  be  in  any  legiflative  affem- 
bly  in  which  it  would  not  be  his  wilh  to  have  the 
a<^ual  majority  of  both  branches  of  the  legiflaturc 
make  the  laws,  and  decide  all  legiflative  quefl:ions. 
It  would  give  him  great  pleafure  to  fee  every  mem- 
ber of  the  Senate  prefent  on  this  occafion  ;  next  to 
that  was  the  pleafure  of  having  reafon  to  believe 
that  the  decifion  will  now  be  the  fame  as  if  the 
whole  number  was  prefent ;   he  had  no  doubt  but 
it  was  generally  fo  underflood  ;   this  is  the  higheft 
cvidxince  that  can  be  had  in  any  deliberative  aflem- 
bly  of  what  is  their  duty,  and  is  the  only  thing  that 
can  be  expefted  to  give  the  mofl  general  and  per- 
manent fatisfaftion.     He  thought  it  very  far  from 


279 

being  a  difrefpeib  to  the  committee,  or  ^U  nnufal 
mode  of  proceeding  ;  when  the  Senate  is  not  ready- 
to  proceed  in  a  bufmefs,  they  cither  poilpone,  com- 
mit, or  adjourn  it ;  whenever,  in  the  opinion  of  the 
majority,  the  caufe  for  the  delay  is  removed,  whcK 
ther  by  the  labours  of  a  committee  or  of  an  indivi- 
dual member,  the  houfe  proceed  in  the  bufiaefs, 
difcharge  the  committee  of  the  whole,  or  the  fele^t 
committee,  as  is  feenin  every  day's  pra6:ice  of  parr 
liamentary  aifemblies. 

In  the  difcuflion  of  this  morning,  gentlemen  ap^ 
peared  to  have  in  a  great  degree  given  up  what  they 
had  before  confidered  their,  flrong  ground,  viz.  the 
fuperior  excellency  of  the  'new  judiciary  fyflem  of 
lad  feffion,  now  propofed  to  be  repealed.  The  ar- 
gument this  morning  has  turned  on  the  incompeten- 
cy of  that  fyftem,  and  the  importance  of  keeping 
the  committee  in  felTion,  to  devife  another  new  one 
to  be  compofed  out  of  both  the  former  ones.  He 
muft  beg  leave  to  fubmit  to  the  candour  of  the  gen- 
tlemen, whether,  if  that  was  at  prefent  the  (late  of 
their  minds,  they  had  not  better  let  the  old  fyflem, 
which  has  been  in  operation  ever  fince  the  beginning 
of  this  government,  with  which  the  country  is  well 
acquainted,  and  to  which  they  have  been  fo  much 
accuftomed,  be  continued  in  operation,  till-  their 
minds  are  more  fettled,  and  till  more  time  can  be 
given  to  mature  and  perfe^l:  amendments  and  altera- 
tions, which  it  feems  now  to  be  propofed  to  make  as 
to  juries,  and  other  important  provifions,  which  feem 
now  to  be  in  contemplation.     He  was  very  unwil- 


28« 

ling  to  diflraft  the  country  by  many  propofitions  of 
new  judiciary  fyllems,  following  each  other  every 
feflion  of  Congrefs ;  he  thought  it  more  clearly 
evident  than  before,  that  it  was  befl  to  go  on  and 
reftorc  the  old  fyftem  for  a  year  or  two  longer,  at 
leaft.  As  a  member  of  the  committee,  he  mud  de- 
clare it  as  his  opinion,  that  there  was  very  little 
profpeft  of  their  devifmg  a  new  one,  during  the 
remainder  of  the  prefent  feffion,  which  would  be  fo 
likely  to  be  acceptable  as  the  old  one,  efpecially  as 
it  had  never  bpen  pretended  that  the  old  one  was 
fo  extremely  vicious  and  intolerable,  that  it  might 
not  be  continued  a  year  or  two  longer,  till  expe- 
rience and  reflection  could  devife  fomcthing  in 
which  we  could  be  more  unanimous  than  in  any 
thing  which  has  as  yet  prefented  itfelf. 

Some  additional  obfervations  were  made  by  Mr. 
S.  T.  Mason  and  Mr.  Ross,  tending  to  explain 
what  had  been  previoufly  advanced.  Meffrs. 
Cocke,  Wright  and  Jackson,  had  fpoken  in 
the  courfc  of  this  debate.  On  the  queflion  the 
Yeas  and  Nays  were  as  follow  : 

YEAS. 

Meffrs.  Anderfon,  Meffrs.  fVankJin, 

Baldwin,  Jackfon, 

•      Bradrcy,  Logan, 

Breckenridgc,  S.  T.  Mafon, 

Brown,  Nicholas, 

Cocke,  Stone, 

Ellcry,  Sumptcr,  and 

T.  Fofter,  Wright— 1 6. 


281 

NAYS. 

Meffrs.  Chipman,  Meffrs.  Ogdcn, 

Colhoun,  Olcott, 

Dayton,  Rofs, 

Fofter,  Shcafc, 

Hillhoufe,  Tracy, 

J.  Mafon,  Wells,  and 

Morris,  White-T-i4. 

On  Wednefday,  the  3d  of  February,  a  motion 
was  made  by  Mr.  Ross,  to  amend~the  bill,  fo  as  to 
leave  in  exiftencc  the  third  circuit.  This  motion 
was  predicated  on  the  memorial  of  the  Philadelphia 
bar,  fhewing  the  utility  of  this  court.  Mr.  Ross 
dwelt  on  the  fuperiority  of  the  new  fyflem  over  the 
old,  and  on  the  great  defed  in  the  latter,  in  giving 
the  fame  judges  both  original  and  appellate  jurif- 
diftion  ;  a  thing,  faid  Mr.  Ross,  neither  contem- 
plated by  theconflitution,  nor  confident  with  found 
principles  of  jurifprudence.  As  the  debate  on  this 
amendment  did  not  affeft  but  incidentally  the  merits 
of  the  main  cjueftion,  it  need  not  be  detailed.  The 
motion  was  rejefted. 

Mr.  Bradley  thereupon  rofe.  Mr.  Prefident, 
I  (hall  vote  for  the  repeal,- becaufe  it  feems  to  me 
that  we  have  got  no  ufe  for  thefe  courts.  The 
bufmefs  was  decreafmg  when  they  were  appointed, 
and  the  old  fyflem  feeras  uo  me  to  be  much  better 
than  the  new  one.   The  lawyers  of  Philadelphia  like 


282 

the  new  one'T)efl:,  but  it  is  for  their  intereft  to  have 
a  great  many  courts.  Now,  Mr.  Prefident,  I  look, 
upon  the  repeal  of  this  law,  only  as  one  part  of  a 
great  fyftem.  This  fyflem,  recommended  by  our 
worthy  Prefident,  is  a  fyftcm  of  more  glory  than 
our  country  ever  had.  This  fyftem  is  to  be  com- 
pleted by  leflcning  all  our  expenfes  ;  by  reducing 
our  military  cftablifliment ;  by  difciplining  our  mi- 
litia J  by  repealing  our  internal  taxes ;  and  then, 
fir,  we  fhall  foon  pay  our  debts,  and  with  a  great 
population  of  free  citizens,  we  fhall  make  all  the 
tyrants  of  Europe  tremble  on  their  thrones,  and  in 
the  middle  of  their  armies.  None  of  them  will  dare 
to  attack  this  country.  This  is  a  glorious  fyftem. 
And  then,  Mr.  Prefident,  I  don*t  fee  how  this 
can  be  fo  unconftitutional,  as  the  gentlemen  in  the 
oppofition  pretend.  The  words  in  the  conftjtution 
'*  to  hold  during  good  behaviour,'*  have  been  inter- 
preted very  differently  in  different  ftates ;  fo,  I  think, 
we  can't  apply  to  the  ftates  to  fix  a  right  meaning 
to  them  words.  Well,  who  then  fliall  we  apply  to  ? 
It  feems  to  me  we  ought  to  apply  to  that  country 
where  thefc  words  were  firft  ufcd.  Now,  fir,  in 
that  country,  an  aft  of  Parliament  can  put  down 
any  courts  or  judges,  though  they  do  hold  their 
offices  during  good  behaviour.  I  don't  fee  then,  fir, 
why  an  aft  of  Congrefs  fhouldnot  put  down  courts 
and  judges  in  this  country.  The  judges  will  ftill 
hold  their  offices  during  good  behaviour,  as  much 
as  they  do  in  'England. 


.     283 

I^efides,  Mr.  Prefidcnt,  I  think  if  we  interpret 
the  conftitution  as  thefc  gentlemen  pr6pofe,  it  ^ill 
amount  to  a  perpetuity  for  this  cxpenfive  fyftem, 
becaufe  whert  a  judge  dies  out,  the  Prtfident  is 
bound  to  fill  up  the  pi;ice  ;  and  even  if  they  fhould 
all  happen  to  die  together,  he  mufl  appoint  fixieen 
new  ones ;  fo  I  don't  fee  how  we  are  ever  to  get  rid 
of  this  fyftem  ;  'tis  an  abfolute  perpetuity — unlefs 
God  fliould  be  moved,  as  he  was  by  the  fms  of  the 
old  world,  to  deflroy  us  all  by  a  flood.  So,  fir,  i 
ihall  vbte  for  the  repeal. 

Mr.  Ross.  I  regret  extremely,  that  by  my  ab- 
fence  from  the  earlier  part  of  this  feffion,  I  have  loft 
the  interefting  information  which  has  been  offered 
by  the  able  and  eloquent  difcuffion  of  the  queiiion. 
When  the  intelligence  reached  me  that  fuch  a  bill 
was  propofed,  1  loft  no  time  in  repairing  to  my  feat, 
that  I  might  at  leaft  difcharge  the  melanclK)ly  duty 
of  entering  my  folemnproteft  againfta  meafure,  more 
pernicious  in  its  nature,  and  more  fatal  in  its  confe- 
quences,  than  any  ever  propofed  in  this  houfe. 

Having  already  [in  the  debate  on  Mr.  Ross's 
motion  to  except  the  third  circuit  from  the  repeal- 
ing lawj  ftated  my  reafons  for  preferring  the  prc- 
fent  to  the  former  organization  of  the  circuit  courts 
of  the  United  States,  I  ftiall  repeat  nothing  refpcft- 
ing  expediericy,  but.  confine  myfJf  ftri^lly  to  iti 
examination  of  our  conftitutional  power  to  pafs  the 
bill  now  urdcr  confideration.  And  in  doing  this, 
1  do  not  mean  to  deny  the  power  of  Congrefs  to 

Go 


284 

add  nc\^  judges  to  cxifting  courts  ;  to  forbid  the  fil- 
ling of  vacancies,  fo  as  to  leflen  the  number  of  judg- 
es ;  to  devolve  newduties  upon  the  courts,  or  take 
away  old,  but  unneceffary  jurifdi(5lion  ;  nor  will  I 
difpute  their  authority  to  aboliih  a  particular  court 
where  it  can  be  no  longer  employed  for  the  purpo- 
fes  of  its  inflitution,  provided  fuch  abolition  be 
attended  with  regulations  guarding  againft  the  vio- 
lations of  public  engagements.  All  thefe  points 
may  be  fafely  conceded,  and  the  conceflion  will  at 
once  filence  thofc  gentlemen,  who  have  as  errone- 
oufly  as  boldly  afTerted,  that  the  law  of  the  1 3th 
February,  1801,  embraces  a  principle  and  furniihes 
a  precedent,  as  broad  and  as  pernicious  as  the  pre- 
fent. 

That  law  declares,  that  the  firft  vacancy  in  the 
fupreme  court  of  the  United  h' tares,  fliall  not  be 
filled  up.  This  would  reduce  the  future  number  of 
that  court  to  five. 

How  does  this  affcfl  the  independence  of  the 
court  or  any  member  of  it  ?  Surely  there  is  no 
breach  of  your  engagement  with  any  individual, 
nor  can  I  difcover  what  gentlemen  intended  to 
condemn. 

The  fame  law,  in  the  24th  fe£lion,  provides, 
that  the  diflriift  judges  of  Ken'tucky  and  Tennelfce, 
fliall  be  component  members  of  the  courts  in  the 
fixth  circuit :  And  it  is  now  afferted  that  thereby 
the  old  courts  are  aboliflied,  the  judges  divefted  of 
their  old  commilfions,  and  appointed  by  the  legifla- 
ture  to  fill  the  new  offices  veiled  by  that  aft. 


285 

But  when  the  old  fyflem  is  examined,  we  find, 
that  the  judges  in  thofe  dates  had  the  power  of 
holding  circuit  courts  as  well  as  diftrift  courts  with- 
ra  their  refpeftive  ftates.  That  by  the  late  law 
they  dill  remain  judges  of  the  circuit  courts  as  be- 
fore, and  retain  all  the  powers  of  district  judges. 
That  as  fome  new  duties  have  been  devolved  upon 
them,  a  large  additional  compenfation  for  their  fer- 
vices  has  been  added  to  their  original  falaries  5  and 
that  they  have  all  their  original  jurifdiftion,  and 
more  j  they  fit  in  the  fame  court,  hold  the  fame 
office,  have  the  affiftance  of  other  judges  ;  they  lofe 
none  of  their  independence,  but  gain  a  great  in- 
creafe  of  compenfation.  The  law  of  13th  of  Febru- 
ary, 1 80 1 ,  then  difplays  the  facred  regard  of  the 
-laft  Congrefs  for  the  conftitutional  permanency  of 
the  judiciary,  inftead  of  furnifhing  a  precedent  for 
legiflativc  removal  of  judges  from  office. 

By  the  bill  on  your  table,  the  legiflature  aflerts 
and  exercifes  the  new  and  dangerous  power  of  abo- 
lifhing  all  the  circuit  courts  of  the  United  States,  of 
removing  from  office  d;// the  judges  ofthefe  courts, 
crefting  new  courts  of  the  fame  name,  and  with  pre- 
cifely  the  fame  jurifdiflion,  to  be  held  by  other  per- 
fons  who  are  defignated  in  the  bill.  The  judges  arc 
difplaced,  not  becaufe  you  will  no  longer  employ 
circuit  judges  :  For  you  appoint  and  employ  other 
circuit  judges  :  The  courts  are,  nominally  abolifli- 
ed,  not  becaufe  inferior  or  circuit  courts  of  the  Uni- 
ted States  are  ufelefs,  or  the  purpofes  of  their  iufti-' 


286 

tuitidn  at  an  end  :  For  other  courts,  of  the  fame 
aame,  with  the  fame  powers,  and  for  precifely  the 
fame  purpofcs,  are  enabled  by  this  very  bill.  What- 
ever its  title  may  be,  the  bill  itfelf  is  nothing  lefs 
than  an  aft  of  the  legiQature  removing  from  office 
all  the  judges  of  all  the  circuit  courts  of  the  United 
States.  It  is  a  declaration  that  thofe  officers  hold 
their  offices  at  your  will  and  pleafure  That  by  law 
you  fignify  your  preference  of  other  men,  and  that 
thefe  ftiall  ferve  you  no  longer. 

This  is  a  direft  and  palpable  violation  of  the 
conftitution.  After  providing  for  the  internal  fe- 
curity  of  a  nation,  the  great  care  of  every  legiflator 
is  direfted  towards  the  pure  and  prompt  adminiftra- 
tion  of  juflice.  It  is  for  the  attainment  of  this  great 
end,  that  government  is  principally  inftituted,  and 
the  people  are  happy,  or  miferable,  as  thejudiciary 
is  pure,  wife,  and  independent,  orotherwifc.  The 
executive  and  legiflative  authority,  inflead  of  be- 
ing in  their  nature  paramount,  are  rather  auxiliary 
and  fubfervient  in  promoting  the  free  and  irreiifla- 
ble  operations  of  the  judicial  power.  In  our  nation- 
al government  thefe  three  great  powers  are  clearly 
feparated,  and  depofitcd  in  different  hands.  It  is  a 
government  of  departments,  each  reprefenting  and 
cxercifmg  the  fovereignty  for  a  particular  purpofc, 
and  each  prohibited  from  encroaching  upon  or  cxer- 
cifing  the  powers  of  another. 

By  art.  3d.  fee.  1.  and  2.  the  judicial  power 
is  veiled  in  a  fuprcme  court,  and  fuch  inferior  courts 


287 

as  Congrefs  may  from  time  to  time  eflablifli.  Th# 
judges  of  all  courts  of  the  United  States,  are  to  hold 
their  offices  during  good  behaviour,  and  to  receive 
a  compenfation  which  (hall  not  be  diminiflied  dur- 
ing their  contmuance  in  office. 

The  provifion  for  their  independence  both  of 
Icgiflative  and  executive  power  was  wife  and  abfo- 
lutely  indifpenfable.  From  the  conftitution  itfclf 
they  have  a  tranfcendent  jurifdidHon,  not  only  be- 
tween citizen  and  citizen,  but  between  a  ftate  znd, 
citizen,  between  different  flates,  and  between  the 
United  States  and  the  feveral  flates :  It  would  have 
been  prepoflerous  to  fubje£l  the  courts  to  thofe 
whofe  a6ls  they  are  directed  to  interpret  and  control. 
The  laws  of  Congrefs  organizing  the  courts,  define 
the  number  of  judges  in  each  court,  fix  their  cora- 
penfations  and  defignate  the  extent  of  their  jurif- 
diftion.  But  the  tenure  of  office  is  uot  derived 
from  the  laws,  but  from  the  conflitution — Congrefs 
cannot  ereft  courts  to  be  held  by  judges  commiifion- 
ed  during  the  pleafure  of  the  executive,  or  of  the 
legiflature,  or  during  five  or  ten  year  only  j  fuch  a 
law,  and  fuch  a  tenure  would  be  clearly  unconflitu- 
tional. 

But  it  k  contended  that  although  the  conflitu- 
tion prohibits  the  executive  and  legiflature  from 
difplacing  a  judge  diredly  or  by  name  ;  yet  the  legif- 
lature may  abolifli  the  office,  and  thereby  indiredly 
effect  the  fame  end.  For  then  there  will  be  no 
o^cc  in  which  the  judge  can  continue,  nor  any  fer- 


28S 

vice  rendered  for  what  he  ought  to  receive  a  com' 
pensation.  There  is  no  violation  then  of  the  letter' 
of  the  conflitution,  and  the  legiflature  are  the  fole 
judges  of  its  true  fpirit. 

I  anfwer  that  no  device,  however  fubtle,  will 
proteft  us  in  producing  a  forbidden  refult.  An  un- 
lawful end  cannot  be  reached  by  lawful  means. 
This  is  a  moral  and  logical  truth  of  the  old  fchool, 
which  1  believe  the  new  philofophy  will  find  no 
procefs  of  reafoning  to  overturn  ;  and  I  fliould  be 
obliged  to  any  ingenious  gentleman,  for  flating  a 
fyllogifm  which  would  produce  fuch  a  conclufion. 
I  know  well,  that  by  metaphyfical  abftraftions,  you 
may  imperceptibly  gain  a  little  and  a  little  more,  un- 
til at  lafl  the  illufion  of  the  fallacy  is  fcarcely  within 
the  compafs  of  detedion  ;  but  here,  where  every 
flep  can  be  fo  diftiniSlly  traced,  the  delufion  is  im- 
poflible.  You  admit  that  the  difmifhon  of  fixteen 
judges  by  name,  would  be  unconftitutional.  What 
difference  is  there  between  this  and  your  bill,  which 
declares,  that  the  circuit  courts  (hall  no  longer  be 
held  by  the  prefent  judges,  but  by  certain  other 
men  ?  You  do  not  deflroy  the  office  of  circuit  judge, 
for  you  flill  retain  the  circuit  courts.  You  remove 
the  office  from  one  (ci  of  men  who  now  hold  it, 
and  give  it  to  another  fet  that  pleafes  you  better. 
Then  you  contend  that  this  operation,  being  a  re- 
moval of  offices  from  men,  is  not  a  removal  of  men 
from  office,  as  if  your  purpofe  were  not  as  effisc- 
tually  attained  by  inverting  the  order  of  the  words 


289 

as  without  it,  you  fay  there  fhall  be  a  removal,  and 
yet  admit  that  dired  removal  by  you  is  unlawful. 
Surely  fo  barefaced  an  evafion,  fo  undifguifed  an 
ufurpation  of  power  can  deceive  no  man  who  is  not 
already  refolved  to  be  deceived. 

The  honourable  gentleman  from  Vermont  has 
faid  in  this  debate,  that  the  words,  '  holding  du- 
ring good  behaviour,*  ufed  in  the  conftitution,  have 
been  very  differently  underftood  in  the  different 
ftates  ;  and  that  the  Engliih  courts,  whofe  judges 
hold  their  oiEce  during  good  behaviour,  may  be 
abolifhed  by  an  a£l  of  parliament,  which  is  held  to 
be  omnipotent. 

The  gentleman  ought  to  recollcft  that  there  is 
no  analogy  in  this  refpe61:,  between  our  national 
government  and  that  of  Great-Britain.  There,  an 
aft  of  parliament  can  change  the  conftitution. 
Here  the  written  conftitution  eftabliflied  by  the 
people  reftrains  the  legiflature  to  the  exercife  of 
delegated  power,  and  fixes  immutably  certain 
bounds  which  it  may  not  pafs.  If  it  fliould  raflily 
exceed  the  delegated  power,  our  judiciary,  fworn 
to  fupport  the  conftitution,  muft  declare  that  the 
great  irrepealahle  statute^  made  by  the  people,  fliall 
reftrain  and  control  the  unauthorifed  afts  of  agents 
who  have  exceeded  the  limits  of  a  fpecial  authority. 

I  could  eafily  produce  opinions  of  high  refpeda- 
bility  from  many  of  the  ftates,  fiiewing  that  by  the 
words  '  during  good  behaviour,'  was  underftood  a 
complete  independence  of  the  legillative  as  well  as 


290 


executive  power,  but  at  prefent  I  fliall  only  refer  to 
a  cafe  from  Virginia  which  is  dircdiy  in  point,  and 
decided  by  men  of  great  eminence,  whofe  talents 
and  political  opinions  will  not  bequeftioncd  by  gen- 
tlemen who  are  the  friends  of  this  bill.  As  the 
cafe  and  opinion  are  printed  and  in  the  hands  of 
every  body,  I  merely  repeat  that  the  judges  ofVirgi- 
nia,Mr.  Pendleton  at  theirhead,  did  refufe  toexecute 
a  law  of  that  (late  as  unconftitutional,  and  alTigned 
their  rcafons  in  writing  among  which  are  the  fol- 
lowing : 

*'  The  propriety  and  neceflity  of  the  indepen- 
dence of  the  judges  is  evident  in  reafon  and  the  na- 
ture of  the  office  ;  fince  they  are  to  decide  be- 
tween government  and  the  people,  as  well  as  be- 
tween contending  citizens ;  and  if  they  be  depend- 
dcnt  on  either,  corrupt  influence  maybe  apprehend- 
dcd,  facrificing  the  innocent  to  popular  prejudice 
and  fubje£^ing  the  poor  to  oppreiTion  and  perfc- 
cution  by  the  rich.  And  this  applies  more  forci- 
bly to  exclude  a  dependence  on  the  legiflature,  a 
branch  of  whom  in  cafes  of  impeachment  is  itfelf 
a  party.'* 

*'  This  principle  fuppofed,  the  court  are  led  ta 
confider  whether  the  people  have  fecured  or  depart- 
ed from  it  in  their  conflitution  or  form  of  govern- 
ment. In  that  folemn  aft  tkey  difcover  the  peo- 
ple diftributing  the  governmental  powers  into  three 
great  branches,  legiflative,  executive,  and  judiciary, 
in  order  to   prcferve  that  equipoifc  which  they 


291 

judged  neccflary  to  fccure  their  liberty  ;  declaring 
that  thofe  powers  be  kept  feparate  and  diftinft  from 
each  other,  and  that  no  perfon  (hall  exercife  at  the 
fame  time  an  office  in,  more  than  one  of  them,  'i  he 
independence  of  the  two  former  could  not  be  ad- 
mitted, becaufe  in  them,  a  long  continuance  in  of- 
fice might  be  dangerous  to  liberty,  and  therefore, 
they  provided  for  a  change  by  frequent  elections 
at  (tated  periods ;  but  in  the  laft,  from  the  influ- 
ence of  the  principle  before  obferved  upon,  they 
declared  that  the  judges  fliould  hold  their  offices 
during  good  behaviour.  Their  independence  would 
have  been  rendered  complete  by  fixing  the  quantum 
of  their  falaries.** 

After  ftating  the  vafl:  increafe  of  duty,  without 
a  correfpondent  increafe  of  falary,  which  they  deem- 
ed fuch  an  attack  on  their  independence  that  it 
would  be  inconfiflent  with  aconfcientious  difcharge 
of  duty  to  pafs  it  over,  they  fay :  "  For  vain 
would  be  the  precaution  of  the  founders  of  our 
government  to  fecure  liberty,  if  the  legiflature, 
though  restrained  from  changing  the  tenure  of  judicial 
offices^  are  at  liberty  to  compel  a  refignation  by  re- 
ducing falaries  to  a  copper,  or  by  making  it  part 
of  the  official  duty  to  become  hewers  of  wood,  or 
drawers  of  water." 

From  which  there  can  be  no  doubt,  that  in  the 
opinion  of  the  highefl  law  charaders  in  Virginia, 
the  words  '  during  good  behaviour,'  even  without 
a  provifion   for  compenfation,    do  fccure  to  the 


292 

judges  a  complete  independence  of  the  legiflaturc, 
as  well  as  of  the  executive  power,  in  the  tenure  of 
their  offices  ;  and  fhould  an  indirect  attempt  be 
made  upon  that  independence,  either  by  withhold- 
ing pecuniary  compenfation,  or  by  devolving  du- 
ties too  burdenfome,  the  judges  themfelves  may 
take  up  the  law  and  declare  it  to  be  void.  I  fliall 
only  add  that  the  legiflature  of  Virginia,  with  mo- 
deration and  good  fenfc,  highly  honourable  to  them- 
felves, yielded  to  the  judges  and  new  modelled  their 
law. 

The  fame  gentleman  from  Vermont,  has  alfo 
complained,  that  all  our  inferior  courts,  as  well  as 
the  fupreme  court  would,  according  to  our  doftrine, 
be  unchangeable  and  eternal.  This  pofition  is  alto- 
gether incorreft  and  fanciful ;  for  we  admit  that 
the  legiflature  may  add  to,  or  dirainifli  jurifdi^liou, 
may  forbid  vacancies  to  be  filled,  and  do  many  other 
a6ls  contended  for.  But  we  deny  that  ihey  can  re- 
move officers  at  their  pleafure,  and  put  others  in 
their  flead :  that  they  can  vacate  the  a^s  of  all 
our  criminal  and  civil  judges,  and  fill  them  again 
with  their  own  men.  In  one  word,  that  they  can 
afliime  executive  power  over  the  judiciary,  and  de- 
ftroy  and  create  in  the  fame  ftatute-  The  judi- 
cial power  is  in  its  nature  as  permanent  and  as  un- 
changeable by  the  legiflature  or  executive  as  the 
conftitution  itfelf,  and  when  it  lofes  thefe  attributes, 
wc  lofe  all  fecurity  for  property,  for  fame,  and 
for  life,  we  have  nothing  left  that  is  worth  prc- 
fervation. 


293 

Some  gentlemen  have  faid  in  this  debate,  that 
the  fupreme  court  is  better  fecured  by  the  confti- 
tution  againft  the  legiflature,  than  the  inferior 
courts,  and  have  made  a  grave  diftin^ion,  between 
the  words  '  fliall*  and  *  may* — I  fee  no  difference 
in  the  fecurity  of  the  judges  of  the  refpe£live  courts* 
Try  the  efficacy  of  the  new  do6trine  upon  the  fu- 
preme court.  It  is  organized  by  law.  The  power 
which  enafted,  can  repeal  the  law.  We  will  re- 
move the  office  from  the  judges,  not  the  judges 
from  the  offiee.  At  prefent  there  are  fix  judges  in 
that  court.  There  will  be  a  fupreme  court  if  wc 
repeal  the  law  as  to  three.  You  may  fay  the  three 
eldeft,  the  three  youngefl,  or  the  three  who  wear 
wigs,  fliall  hereafter  hold  the  court.  Nay,  the 
principles  of  the  prefent  bill,  would  warrant  you  in 
enafting,  that  the  prefent  fupreme  court  fliall  be 
aboliflied  ;  and  that  the  fupreme  court  fliall  hereaf- 
ter be  held  by  the  difl:ri£i:  judges,  or  any  given  num- 
ber of  them.  And  your  juftification  is  the  fame. 
You  have  legiflated  rcfpeding  the  office  only,  aU 
though  the  faft  will  alfo  be  that  the  office  is  the 
fame,  but  th^  officers  are  all  changed  by  the  new 
operation  of  your  law. 

By  this  horrid  doftrine,  Congrefs  erefts  itfelf 
into  a  complete  tyranny.  All  the  judges  of  your 
civil  and  criminal  courts  hold  their  offices  at  the 
will  of  the  legiflature.  A  majority  of  the  two 
houfes,  is  in  reality  the  national  judiciary.  "  Dur- 
ing good  behaviour,"  means  as  long  as  the  pre- 


294 

vailing  party  in  Congrefs  chufc  to  continue  one 
of  their   own  laws.      When  parties   change  the 
judges  mufl  all  go  out.     What  can  our  citizens, 
■what  can  ftrangers  expeft  from  fuch  courts  ?    If 
you  pafs   laws  impairing   the   obligation  of  con- 
trafts,  or  violating  our  public  faith,  or  ex  poll  fafto 
in  their  operation,  will  our  courts  have  courage 
enough  to  obey  the  conftitution  and  their  oaths,  by 
declaring  fuch  acls  void  ?  If  you  infringe  the  rights 
of  a  (late,  or  deny  the  privileges  fecured  to  it  by 
the  conftitution,  what  remedy,  what  hope  has  the 
ftatc  ?    Will  the  judges  dare  to  refill  your  law,   or 
refufe  to  execute  it  ?  If  they  do,  their  doom  is  cer- 
tain, you  fwecp  away  their  offices  by  a  law,  and  ap- 
point others  to  do  their  duty  :    or  you  nominally 
ereft  new  courts  with  the   fame  jurifdiftion  and 
leave  the  executive   to  hunt  for   more  pliant  men. 
Nay,  (hould   the  courts  and  the  legiflature  be  in 
feflion  at  the  fame  time,  and  in  the  fame  place,  the 
■whole  bufinefs  may,  on  Icgiflative  whim  or  paffion, 
be  taken  out  of  the  hands  of  the  court  who  had  be- 
gan to  hear  it,   and  given  to  men  more  favourable 
to  the  claims  of  popular  fuitors,  or  the  acquittal  of 
favourite  criminals.     The  legiflature  thus  becomes 
a  corrupt  defpotifm,  under  which  no  wife  man  would 
live,  and  to  which  no  freeman  ought  to  fubmit. 

Inflead  of  an  auguft  and  vencmblc  tribunal,  feat- 
cd  above  the  dorms  and  ofcillaiions  of  fadlion,  pre- 
pared to  refciie  innocence  from  the  fangs  of  the  op- 
prcflbr,  to  fland  in  the  gap  as  mediators  between 


295 

the   great  officers  of  government,  and  the  people, 
between  the  national  confederacy  and  the  individual 
ftates,   you  have  a  tranfient  artificial  body,   with- 
out a  will   or  underftanding  of  its  own,  impelled 
by   your   own   machinery,    and  deftitute   of  the 
celeftial  fire  which  fhould  animate  and  direft  its 
courfe.     It  will  be  the  mimickry  and  the  mockery 
of  juftice.     No    more   will  you   fee    in  the  ad- 
miniflration  of  juftice,  thofe  men  whofe  acquire- 
ments    and    talents   have   called    them   to    emi- 
nence at   the  bar.     They  will    never  confent  to 
become  the  fport,  the  tools  and  viftims  of  faftions 
contending  for  maftery  in  the  ftate.     Even  medio- 
crity in  the  profefilon,  will  not  Jeave  cafe  and  dig- 
nified independence  for  a  feat  of  precarious  dura- 
tion, and  where  the  hazard  of  degradation  is  immi- 
nent'and  irretrievable.     You  muft  refort  to    the 
dregs  of  the  law,   to  the  pefts  of  focial  life,  where 
you  may  find  impudence  without  fcience,  zeal  with- 
out judgment,  felf-fufficiency  without  moral  prin- 
ciple, and  we  fliall  foon  fee  executioners  inftead  of 
"judges  in  the  facred  feat  of  juftice.     When  popular 
leaders  fue  before  fuch   courts,  their   adverfaries 
muft  be  manifeftly  in  the  wrong,  and  when  the  ru- 
ling party  accufes,  the  prifoner  at  the  bar  will  never 
be  found  guiltlefs.      Such  a  ftate  of  things  is  cer- 
tainly deprecated  by  every  honourable  member  of 
this  Houfe,  and  yet,  in  my  apprehenfion,  this  fatal 
meafure,  if  carried  through,  will  hurry  us  forward 
into  calamity  and  misfortune  beyond  the  faculties  of 


t96 

man  to  forefce  or  dcfcribc.  Let  us  then  flop  while 
we  arc  yet  fafe,  while  the  boundaries  of  our  power 
and  our  duty  arc  yet  vifible  ;  while  we  have  a  go- 
vernment founded  on  opinion,  unaided  by  force 
and  fupported  by  affcftion  ;  a  government  fecured 
by  folemn  corenant  and  compaft  to  abflain  from  the 
cxercife  of  prohibited  power.  Upon  our  obfervancc 
of  this  caiy  condition  hang  the  hopes  and  the  hap- 
pinefs  of  the  new  world.  The  day  we  tranfgrefs 
W€  fall  from  our  high  and  happy  ftate  ;  touch  not 
then  the  forbidden  tree ;  the  tafte  may  perhaps 
be  fweet,  but  the  fm  is  mortal,  and  from  that  mo- 
ment our  panidife  is  loft. 

Mr,  Ogden..  Mr.  Prefident — Thofe  who  may 
vote  for  the  repeal  of  the  late  judiciary  law,  mull 
be  prepared  to  fay,  in  the  ^rst  place,  that  the  neiv 
fyftem  has  not  advantages  over  the  o/d,  which 
will  compenfate  the  difference  of  expenfe;  and  then 
secondlj — That  the ^W/V/^?/ branch  of  the  govern- 
ment  is  altogether  dependent  on  the  legislati'ue 
branch. 

As  I  cannot,  Mr.  Prefident,  fubfcribe  to  either 
the  one  or  the  other  of  thefe  propofitions,  I  feel 
it  to  be  a  duty,  which  I  owe  to  my  conftituents 
and  myfelf,  to  lay  before  the  Senate  thofe  fenti- 
Hients  which  fhalJ  aftuate  ray  vote  on  this  occa- 
fion. 

The  only  reafon  which  I  recolleft  to  have  been 
urged  by  the  honourable  mover  of  the  refolution, 
upon  which  this  repealing  law  is  predicated,  was, 


297 

that  there  were  uo  benefits  in  the  new  fyftem,  fa 
fuperior  to  thofe  in  the  old  fyftem,  as  wouJd  jtiili- 
fy  the  additional  cxpenfe.  I  fliall,  therefore,  in 
the  firft;  place,  examine  and  compare  the  princi- 
ples of"  thefc  two  fyftems,  in  this  view  of  the 
fubjc<5l. 

Permit  me  to  obferve,  Mr.  Prefident,  that,  in 
my  apprchenfion,  the  duties  of  the  judges  of  the 
fupreme  court,  and  the  duties  of  judges  of  inferior 
courts,  as  contemplated  by  the  conftitution,  arc 
diftinft  duties,  and  that  the  old  fyftem  is  objeftion- 
able,  becaufe  it  affigns  to  the  fame  fet  of  men, 
thefe  diftincl,  and  in  fomc  meafure  incompatible 
ofiices. 

To  fliew,  that  thefe  offices  are  thus  diftinft,  I 
beg  leave  to  refer  to  the  conftitution,  which  ia 
art.  I.  fee.  8,  fays,  "  Congrcfs  fliall  have  power 
to  conftitute  tribunals /«/£'r/(?r /o  the  supreme  court.** 
Thereby  plainly  contemplating  the  one  court  as 
diftinft  from  the  other. 

Again,  art.  3,  (eS:,  i,  provides  that  "  theju-. 
''  dicial  power  of  the  United  States  iliall  be  vefted 
"  in  one  supreme  court,  and  in  fuch  inferior  courts, 
"  as  the  Congrefs  may,  from  time  to  time,  ordain 
"  and  eftablifh.  The  judges,  both  of  the  supreme 
"  and  inferior  courts,  fhall  hold  their  offices,  &c." 
from  whence  the  inference  is  irreflftable,  that  the 
office  of  a  judge  of  the  one  court  was  defigned,  by 
the  conftitution,  to  be  diftincl  from  the  office  of  a 
jndge  of  the  other  courts — and  that  this  conclufioQ 


298 

is  right,  beyond  all  queilion,  is  manifeft  from  the 
next  feftion  of  the  fame  article,  which  provides, 
that  in  two  of  the  cafes,  to  which  the  '*  judicial 
power  of  the  United  States  was  extended,  the  su- 
preme court  (hall  have  original  jurifdiftion,  and  in 
all  the  other  cafes,  the  fupremc  court  fhall  have 
appellate  jurifdiflion.'*  Now,  nothing  in  nature 
can  be  more  diilin£l  than  the  office  of  the  judges 
to  whom  an  appeal  is  made,  and  the  office  of  the 
judges /row  whom  an  appeal  is  made ;  and  yet  under 
the  old  fyftem,  the  funftions  of  thefe  entirely  dif- 
tinft  and  incompatible  offices  were  performed  by 
the  fame  perfons,  who  on  one  day  fat  as  judges  of 
an  inferior  court,  exercifmg  original  jurifdiftion  in 
a  caufe — and,  in  a  few  days  after,  as  judges  of  the 
fupreme  court,  exercifing  appellate  jurifdiftion  in 
the  felf-fame  fuit. 

This  folid  objection  againfl  the  old  fyftem  is  re- 
medied by  the  new. 

But  it  has  been  urged,  that  this  objeftion  may 
be  done  away,  by,  preventing  the  fame  judge  who 
gave  his  opinion,  while  fitting  in  an  inferior  court, 
from  giving  an  opinion  in  the  fame  caufe,  when 
fitting  in  the  fupreme  court.  I  anfwer,  that  in  fuch 
cafe,  you  muft  ahvays  lofe  one  fixth  of  the  benefit 
of  this  great  national  tribunal,  and  frequently  much 
more.  It  may  happen,  that  in  the  fame  fuit,  one 
judge  may  decide  an  important  queftion  of  jurifdic- 
tion,  upon  a  plea  in  abatement  at  one  inferior 
court,  and  another  judge  the  merits  upon  a  queftion 


299 

for  a  non-fuit  at  the  next  court,  and  a  third 
judge  upon  the  form  of  aftion  upon  a  motion  in  ar- 
refl  of  judgment  at  a  fucceeding  court.  Now,  in 
cafes  like  thefe,  the  fupreme  court  would  be  re- 
duced to  one  half  of  its  number,  and  it  might  be 
Ihewn,  that  the  mofl  important  queftions  atfefting 
the  moft  important  interefts  of  this  great  commu- 
nity, under  the  conflitution,  might  be  finally  de- 
cided, upon  writ  of  error,  by  two — nay,  even  one 
judge. 

Let  me  afk,  Mr.  Prefident,  are  there  not  a 
fufficient  number  of  aftors  to  be  found,  who  can 
with  ability,  fill  all  the  characters  in  this  great  na- 
tional drama  ;  or  are  we  fo  poor,  that  in  order  to 
fave  a  cent  a  man,  we  muft  compel  one  fet  of  perfons 
to  play  two  parts  ?  I  hope,  fir,  this  is  not  the 
cafe,  but  that  the  improvement,  which  has  been 
made  in  this  particular  alone,  will  be  found  wor-r 
thy  of  the  additional  expenfe  which  it  creates. 

But,  fir,  there  is  another  objection  to  the  old 
fyftem,  now  about  to  be  revived,  which  appears  to 
my  mind,  to  be  infurmountable*  I  mean  the  na- 
tural impofilbility  of  all  the  funftions  both  of  judges 
of  the  fupreme  court  and  inferior  courts,  of  courts 
of  original,  and  courts  of  appellate  jurifdidion,  be- 
ing performed  by  the  fix  judges  of  the  fupreme 
court,  either  with  tolerable  convenience  to  thcm- 
felves,  or  to  the  public. 

This  pofitioh  will,  I  think,  be  manifeft,  when 
we  confider  the  extent  of  this  vaft  country,  and 


500 

that  the  fame  fix  judges,  mufl:  hold  inferior  courts 
of  original  jurifdiftion,  twice  in  each  year,  in  each 
ftatc,  (except  Tenneflee  and  Kentucky)  and  that 
all  the  judges  mufl  afferable  twice  a  year  in  this 
capitol,  to  officiate  in  the  fupreme  court  in  the  cx- 
crcife  of  their  appellate  jurifdic^ion,  fo  that  the  age 
and  agility  of  a  pod-boy  would  be  more  neceffary 
qualifications  forjudges,  than  that  appropriate  ma- 
turity and  gravity  for  which  they  have  been  felec- 
ted.  Candour  mufl  admit,  that  to  revert  to  this 
old  fyflem,  would  be  to  place  upon  our  judges  a 
mofl  intolerable  talk  and  burthen. 

Again,  under  this  old  fyflem,  courts  were  fre- 
quently lofl ;  a  judge  fomeiimes  was  fick,  fome- 
times  the  rains  defcended,  the  floods  rofe,  the  roads 
became  broken  up,  fo  as  to  render  it  impoffible  to 
hold  the  inferior  courts  at  the  prefcribed  times — 
by  this  means,  fuitors,  parties,  jurors,  and  witnelTes, 
were  difappointed,  and  thus  was  produced,  the 
law's  delay — which  is  the  greatefl  curfe  that  can 
attend  it. 

Befides,  you  might  fee  one  judge  beginning  a 
caufe,  another  and  another  deciding,  in  its  inter- 
mediate progrefs,  and  a  different  one  entirely  mak- 
ing the  reddition  of  judgment. 

Thefe  h6is,  fir,  are  completely  proved  by  the 
memorial  from  the  bar  of  Pennfylvania,  now*  lying 
on  the  fecretary's  table,  and  it  has  been  admitted, 
that  if  the  teflimony  of  the  majority  of  the  bar 
within  the  United  States  could  be  obtained,  that  it 
would  prove  the  fame  thing. 


301 

That  the  new  fyftcm,  remedies  all  thefe  incon- 
veniences has  not  been  difputed,  and  now  it  is 
about  to  be  thrown  away  to  fave  to  the  commu- 
nity a  paltry  cent  per  man — no^  not  so  much^  not  a 
cent. 

But,  fir,  it  has  been  objefted  that  the  judges 
of  England,  ride  the* circuit  of  that  kingdom,  and 
decide  many  more  caufes  than  come  before  our 
courts. 

Let  me  aik,  whether,  becaufe  twelve  judges, 
affifted  by  as  many  other  men  learned  in  the  law 
as  they  may  require,  to  hold  in  their  jftead  courts 
of  Nifi  Prius,  can  in  England  accomplifti  their  buli- 
nefs  in  an  extent  of  30©  miles  fquare,  does  it  follow 
that  in  this  country^  fix  judges,  unaiTifted,  can  per- 
form as  much  bufmefs  over  an  extent  of  country  of 
1 600  miles  fquare  ?  And  yet  it  has  been  fo  argued. 
Admirable  logic  indeed! 

It  has  been  further  objefted,  that  the  ftate 
courts  may  be  reforted  to,  for  that  buCnefs  which, 
by  the  conftitution,  has  been  affigned  to  the  courts 
of  the  United  States,  whereby  the  additional  ex- 
penfe  of  the  late  eftablifliment  may  be  faved^ 
What !  are  we  fo  poor  that  the  United  States  mufl 
thus  alk  alms  from  the  individual  flates,  by  declin- 
ing to  continue  a  proper  provifion  for  fuch  courts 
as  may  be  neceffary  for  the  determination  of  the 
caufes  that  may  arife  under  the  conllitution  and 
laws  of  the  United  States  ?  We  might  as  well, 
upon  the  fame  faving.  principle,  ailc  the  ftate  go- 


302 

Tcrnments  to  perform  for  the  United  States  its  ex- 
ecutive and  legiflative  duties ;  and  what  will  this 
mighty  faving  be,  the  smallest  part  of  a  miserable 
cejit  a  piece.  Such  a  want  of  provifion  of  a  com- 
petent number  of  judges  on  the  part  of  the  United 
States,  to  afford  prompt  and  convenient  juflice,  in 
all  cafes  arifing  under  our  conflitution  and  laws,  is 
not  only,  in  my  mind,  unworthy  of  the  dignity  of 
this  country,  but  feems  like  a  denial  to  our  citizens 
of  the  benefit  of  thofe  ftipulations,  made  in  their 
favour,  when  that  conflitution  was  adopted,  which 
brought  us,  and  now  binds  us  together. 

It  may  be  here  worthy  of  remark,  that  if  the 
ftate  courts  are  to  be  reforted  to,  and  the  legiflature 
fliould  take  away  appeals  from  fuch  courts  to  the 
fupreme  court,  as  they  feem  authorifcd  to  do  by 
the  fecond  fee.  of  the  third  article,  which  provides 
that  "  the  appellate  jurifdiflion  fliall  be  liable  to 
**  fuch  exceptions,  and  fuch  regulations  as  Congrefs 
*'  fhould  make ;"  then  it  will  happen,  that  all  con- 
flitutional  tjucftions  between  the  gfrneral  govern- 
ment and  ftate  governments  mufl  be  decided  by 
flate  tribunals  j  and  every  thing  thrown  back,  as 
far  as  relates  to  this  fubjeft,  to  that  flate  of  things 
which  exifled  under  the  old  confederation. 

But  fir,  in  my  apprehenfion  of  this  fubjedl, 
the  legiflature  were  bound  to  have  made  provifion 
for  a  competent  number  of  national  courts  oiori^inai^ 
as  well  as  of  appellate  jurird!(ffiun  j  the  one  to  be 
filled  by  inferior,  and  the  other  by  fupreme  court 


303 

judges.  When  this  provifion  has  been  made,  and 
when  it  is  upon  the  full  tide  of  fuccefsful  experi- 
ment, is  it  wife  ?  Is  it  prudent  ?  Thus  fhortly, 
without  the  tefl  of  experience,  to  throw  away 
thefe  provifions,  for  the  miserable  savings  now  con- 
templated ? 

It  has  been,  moreover,  objef^ed,  that  the  bufi- 
nefs  of  the  national  courts  has  dccreafed,  and  that 
the  fame  neceflity  for  the  new  eftablifhment  as 
formerly,  does  not  now  exiil. 

Permit  me  fir,  to  obferve,  that  while  our  popu- 
lation is  encr:-afing  beyond  all  former  example : 
while  our  treaties  are  growing  in  number  and  our 
ftatute  book  is  enlarging,  it  is  a  necefTary  confe- 
qence  that  the  bufmcfs  of  our  courts  muft  encreafe  ; 
and  if  bufmefs  did  not  encreafe  under  the  old  fyflera, 
it  is  a  conclufive  proof  that  that  fyftem  was  radically 
wrong.  I  admit,  that  it  is  very  difficult  to  make  a 
provifion  exactly  commenfurate  with  the  public 
wants  ;  but  it  is  certainly  more  fafe  to  have  fuch 
provifion  too  broad  than  too  narrow  ;  and  as  the 
fyftem  must  be  uniform,  it  muft  be  fo  extenfive  as  to 
afford  a  fpeedy  and  convenient  adminiftration  of 
juftice  to  fuch  portions  of  the  country,  as  may  moft 
require  it. 

'  he  refult,  Mr.  Prefident  of  this  comparifon, 
undc'  all  thele  circumftances,  clcany  is,  according 
to  my  judgment,  that  the  f)ftem  has  fuch  advanta- 
ge^ over  the  old,  as  well  in  ics  greater  propriety  as 
in  its  perfed  practicability  and  fuperior  convenience. 


504 

as  will,  by  many  times,  outweigh  that  trifling  addi. 
tional  expenfe  which  ought  never  to  have  been  fet 
up  againft  it. 

But  fir,  the  gentlemen  on  the  other  fide  of  the 
room,  appear  to  me,  in  a  great  raeafurc  to  have 
given  up  this  point,  and  feem  ardent  to  rufh,  even 
without  a  neceflity,  to  give  fuch  a  conftrudion  to 
the  conftitution,  as  will  render  xht  judiciary  entirely 
(dependent  on  the  legijlature  ;  this  opens  a  great  con- 
ftitutional  point,  to  the  difcuffion  of  which  I  ap- 
proach with  trembling. 

It  appears  to  me,  fir,  that  the  three  pillars, 
namely,  the  legiilative,  executive  and  judicial,  upon 
which  our  goverment  (lands,  are  entirely  independent 
of  each  other — that  the  funftionaries  in  thefe  three 
great  departments  are  irresponsible  to  each  other, 
and  that  they  equally  derive  their  official  being  and 
existence  immediately  from  the  conftitution  itfelf,  and 
pot  from  any  laws,  which  may  from  time  to  time  be- 
come neceiTary  to  bring  thefe  great  departments  into 
complete  operation. 

I  fay,  fir,  they  are  independent  of  each  other, 
becaufe,  there  is  no  dependence  or  connexion  be- 
tween them,  created  by  the  conftitution — tlie  firft 
article,  whereof,  feftion  i  and  2,  provides  for  the 
legiflative,  the  manner  in  which  they  fliall  be  chofen, 
and  the  term  of  their  offices.  So,  article  i,  feftion 
2,  provides  in  the  like  manner  for  the  executive  ; 
and  article  3,  feftion  i,  makes  fimilar  provificn  for 
the  judicial.     Now,  fir,  the  fages  who  framed  this 


305 

•onftitution  would  not  have  made  thefe  branches 
thus  co-equal,  co-ordinate,  and  independent  of  each 
other,  if  they  had  intended  that  either  one  might,by 
a  law,  be  rendered  dependent  on  either  of  the  others ; 
they  perfeftly  knew,  that  it  is  as  natural  in  politics, 
as  attrad>ion  is  in  phyfics,  that  the  greater  body  muft 
eventually  draw  within  its  vortex  every  lefTer  one, 
rnilefs  balanced  and  counterafted ;  they  therefore, 
inftead  of  creating  any  dependence  of  any  one 
branch  upon  any  one  of  the  others,  which  they 
would  have  done  if  they  had  fo  intended,  have  ex- 
prefsly  provided  that  the  executive  fhould  continue 
in  office  ^ox  four  years ^  fenators  for  six  years ^  repre- 
fentatives  for  two  years,  and  judges  during  good 
behaviour.  How  can  it  be  faid  that  one  co-ordi- 
nate branch  can  abridge  the  time  of  the  political 
cxillence  of  either  one  of  the  others — arid  who  can 
{hew  that  if  the  legillature  can  do  this  in  regard  to. 
one  of  the  other  branches,  why  it  may  not  do  the 
fame  in  regard  to  the  other. 

It  has  been  obferved,  that  independent  judges 
for  life,  may  become  dangerous,  by  having  a  com- 
plete control  over  your  laws.  I  anfwer  that  we  arc 
here,  not  making  hxit  acting  under  the  conflitution, 
which  has  created  this  independence,  and  we  are 
bound  not  to  impair  it.  But,  fir,  I  believe  that 
this  independence  is  in  perfeft  conformity  with  the 
genius  of  the  American  people,  and  that  it  is  dear 
to  them. 


306 

Our  forefathers  came  from  a  land  where  this  in- 
dependence exifted  in  the  then  greateft  extent  in 
the  known  world.  Thry  boafled  of  it  with  pride 
to  their  children,  as  the  h'ghefl  birth-right  of  a  free 
citizen.  They  complained  incefTanily  that  here  it 
was  not  fo ;  that  their  judges  were  not  indepen- 
dent, and  this  very  reafon,  m  our  declaration  of  in- 
dependence, is  alligned  as  one  of  the  caufes  of  our 
reparation  from  our  mother  country. 

All  the  .""racrican  conftitutions,  in  conformity 
to  this  idea,  have  endeavoured  to  preferve  the  fame 
independence  of  judges,  by  the  mofl  exprefs  terms, 
and  the  inflrument  now  under  confideration,  ufes 
the  mofl  unequivocal  language  that  human  wifdom 
can  dif^ate,  to  fecure  (  as  far  as  can  be  secured  by 
paper")  the  independence  of  the  judiciary.  Suffer 
me  further  to  obferve,  that  our  government  is  a 
government  of  checks — that  the  power  given  by 
the  conftitution  to  the  leglflature  is  not  general  but 
special,  that  it  is  not  omnipotent  but  limited — and 
that  therefore,  necessarily^  a  check  againft  it  muft 
foraewherc  exift.  Suppofe  thelegiflaturefhould  pafs 
bills  of  attainder,  or  an  uncondilutional  tax,  where 
can  anopprcffed  citizen  any  where  find  protection, 
but  in  a  court  of  juftice,  firmly  denying  to  carry 
into  execution  an  unconftitutional  law  ;  what  power 
clfe  can  proteft  the  ftate  fovereigntibs,  (bould  the 
other  branches  combine  againft  them  ^.  And  let  mc 
afk,  where  can  fuch  power  be  more  fafcly  lodged, 
than  in  that  branch  of  the  government,  which 


307 

holding  ncithef  thefword  nor  thepurfe  of  the  nation, 
cannot  have  either  the  atiibition  or  the  means  of 
fubverting,  to  their  own  benefit,  the  proviiions  of 
our  conftitution  ?  I  contend,  fir,  that  by  our  con- 
ilitution,  judges  are  not  only  indcpende^it  bat  irre- 
sponsible^  except  in  the  mode  therein  pbinftbd"  biit, 
which  is  by  impeachment,  and  if  liable  tb  be  piit 
down  in  any  othtr  way*,  they  will  become  depen- 
dent and  fervile  creatures  ;  if  the  propofed  law  ob- 
tains, they  will  be  put  down,  without  irriJDeachmcnt, 
without  trial,  and  for  no  reafon  whatever,  except  it 
be,  either  to  save  the  smallest  part  of  a  rriis^r  able  far- 
thing-,  or  on  account  of  the  great  sinofhd'oin^been  ap- 
pointed under  the  former  administration.  I  hope, 
fir,  that  fuch  an  unworthy  reafon,  or  fuch  vihdidive 
paffions  will  never  operate  to  produce  a  meafure 
which  will  fhake  and  diminilh  the  confidence  which 
confiderate  men-  have  hitherto  had  in  that  fecurity, 
which  they  thought  they  pofTelTcd  undct  this  cott- 
ftitution. 

The  argument,  mofl  worthy  of  notice,  from  the 
other  fide  of  the  Houfe,  appears  to  me  to  be  that 
which  is  founded  on  an  idea,  that  the  judges  about 
to  be  put  down,  were  not  created  by  the  conftitu- 
tion,  as  it  is  faid  the  judges  of  the  fupreme  courts 
were,  but  by  the  legiilature,  and  that,  as  the  crea- 
ture cannot  be  out  of  the  reach  of  the  creator,  fo 
thefe  judges  muft  be  dependent  on  the  legiilature. 

Firft,  I  anfwcr,  that  no  found  diftinftibn  can  be 
made  between  the  tenures  by  which  judges  of  the 

Rr 


308 

fupremc  and  judges  of  the  inferior  courts  hold  their 
offices,  according  to  the  conftitution,  and  it  having 
been  admitted  in  argument,  that  the  judges  of  the 
fupreme  court  are  not  thus  Hable  to  be  put  down, 
it  follows,  that  judges  of  the  inferior  courts  are  not 
thusf  liable  ;  but,  fir,  a  diftinftion  has  been  aimed 
at ;  it  has  been  faid,  that  the  word  shall  has  been 
ufed,  in  reference  to  the  one,  and  the  word  may  in 
reference  to  the  other  ;  but  I  believe  the  word 
shall  \%  equally  applicable  to  both  cafes.  Take  the 
words  *  the  judicial  power  fhall  be  vefled  in  one  fu- 
preme court,  and  in  fuch  inferior  courts  as  Congrefs 
may  from  time  to  time  eftablifh.*  Can  any  one 
doubt  that  the  word  shall  is  not  equally  imperative 
in  the  cafes  of  both  fpecies  of  courts,  and  that  the 
evident  meaning  of  the  conftitution  is,  that  Con- 
grefs fliall  appoint  as  well  inferior  court  judges,  as 
fupreme  court  judges,  and  that  the  word  may  is 
only  introduced  to  take  away,  in  regard  to  the  in- 
ferior courts,  that  limitation  which  is  made  in  ref- 
pcft  to  the  fupreme  court ;  the  language  then  is, 
thtteshallhc  but  one  fupreme  court,  although  there 
fhall  be  as  many  inferior  courts  as  Congrefs  may  ef- 
tablifli.  But  this  diftinftion,  in  regard  to  the  te- 
nure by  which  thefe  refpedive  judges  hold  their 
offices,  altogether  vanifhes  from  my  mind,  when  I 
read  in  the  conftitution,  that  the  judges,  both  of 
the  fupreme  and  inferior  courts  ftiall  hold  their  of- 
fices during  good  behaviour  ?  The  wit  of  man  could 
not  have  invented  more  explicit  terms.     But,  it  is 


309 

faid,  that  a  law  was  neceflary  to  bring  into  official 
exiftence,  the  judges  of  inferior  courts.  I  anfwer, 
a  law  was  equally  neceflary  to  bring  into  official 
cxiflencc,  judges  of  the  fupreme  court,  and  a  law 
for  the  purpofe  was  adually  paflTed :  How  then 
can  it  be  faid,  the  one  corps  is  created  by  the  con- 
ftitution  and  the  other  by  a  law  ?  The  truth  is,. fir, 
that  no  fuch  diflinftion  cxifts  as  the  one  which  has 
beenfet  up,  and  if  the  prefent  law  pafles,  it  will  be 
an  irreliftable  precedent,  to  any  future  legiflature 
who  may  be  difpofed  by  a  law  to  put  down  the  fu- 
preme court  judges,  and  no  ingenuity  will  be  able 
to  point  out  any  folid  diftindtion  between  the  two 
cafes. 

Again,  Mr.  Prefidenf,  it  is  evident,  that  the 
neceffity  of  having  made  a  law,  in  order  to  give  of- 
iScial  being  to  thefe  judges,  does  not  make  them  de- 
pendent on  the  legiflature,  or  prove  that  they  do  not 
hold  their  offices  under  the  conftitution  j  becaufe 
■  if  fuch  reafoning  were  good,  it  would  equally  prove, 
that  the  Prefident,  Vice-Prcfldent,  Senators,  and 
Reprefentatives,  do  not  hold  their  refpeftive  offices 
under  the  conftitution  ;  but  under  thofe  refpeftive 
^  laws  which  have  been  neceflfarily  paflTed  to  bring 
them  into  exiftence  j  fuch  a«  the  laws  for  the  ap- 
pointment of  ele£lors,  for  ele£lion  of  Senators  and 
Reprefentatives,  and  for  determining  the  number 
of  Reprefentatives,  by  fixing  the  ratio  t  Will  any 
one  pretend,  that  by  repealing  the  refpe6live  laws 
under  which  ele<Elions  have  been  had,  and  the  num- 


310 

ber  of  Rcprefentatives  afcertained,  that  thereby 
the  tenure  of  their  offices,  in  refpe£l  to  the  time  of 
duration,  as  fixed  by  the  conftltution,  can  be  impair- 
ed ?  Permit  me  to  mention  one  more  cafe ;  by  fee. 
3,  of  art  ift,  it  is  provided,  that  new  dates  mayhc 
admitted,  by  Congrefs,  into  this  Union  ;  now  laws 
for  this  are  abfolutely  neceflary,  fuch  laws  have 
pafTed  ;  but,  when  pafTed,  will  any  fay,  that  the 
foltticat  exigence  of  thefc  new  flates  depends  on  the 
laws  ;  no,  fir,  it  depends  on  the  conflitution,  and 
for  this  reafon  a  repeal  of  fuch  laws,  after  admifilon, 
cannot  annihilate  the  new  flates  or  aflfeft  their 
independence. 

The  neceflary  refult  of  this  enquiry  is,  that  the 
office  of  inferior  judges  is  derived  from  as  high  a 
fource,  and  is  equally  independent  of  the  Icgillaturc, 
as  that  of  the  judges  of  the  fupremc  court,  the 
Prefident,  Vice-Prefident,  Senators,  and  Kcprcfea- 
tives ;  that  the  official  life  and  being  of  each  is  de- 
rived from  the  conflitution,  and  that  the  legiflature 
has  been  merely  the  organ  made  ufe  of  under  the 
conflitution,  m  bringing  them  into  exiftence. 

Has  our  conflitution  then  provided  for  our  citi- 
zens this  immenfe  fecurity  of  independent  tribunals, 
aiid  fhall  the  legiflature  now  render  them  depend- 
ent on  its  own  will  and  pleafure  ?  Life,  as  well  as 
property,  may  be  at  flake  before  bur  courts,  and 
arc  they  to  be  filled  by  independent  judges,  who 
are  regardlcfs  equally  of  the  fmiles  or  frowns  of 
men  ia  power,  or  by  the  dependant*  of  the  party. 


3-11 

coming  in  and  going  out  of  office  at  each  alternate 
change  ?  Violent  times  have  happened  in  other 
countries  j  there  may  be  fuch  times  here ;  and  if 
our  criminal  tribunals  are  then  filled  by  the  raifera- 
ble  minions  of  power,  who  can  anfwer  for  the  con- 
fequences  ;  who  can  fay  that  blood  will  not  flow 
down  our  ftreets  in  torrents  ? 

I  fee  gentlemen  on  the  other  fide  of  the  houfe 
are  smiling ;  but  I  beg  them  to  recolleft  that  fuch 
things  may  be  brought  home  to  ourfelves  ;  that  I 
am  not  putting  an  extreme  cafe ;  what  has  happened 
may  happen  ;  we  have  feen  in  France  a  conftitution 
univerfally  adopted,  and  fidelity  fworn  to  it  in  the 
faceof  heaven ;  wehavefeen  one  independent  branch 
of  the  government  firil  trench  upon  and  then  deflroy 
another  independent  branch  ;  we  faw  then  the  cri- 
minal tribunals  filled,  not  with  independent  judges, 
but  inftead  thereof,  with  monsters  and  executioners^ 
the  vile  dependants  of  the  national  legiflature,  who 
were  themfelves,  by  means  of  thefe  very  tribunals, 
tinder  the  control  of  the  infamous  Robefpierre  ; 
thefe  cruelties  were  fucceeded  by  another  conllitu- 
tion,  and  another ;  the  independence  of  the  national 
legiflature,  was,  in  its  turn,  trenched  upon  by  the 
executive,  and  finally,  all  the  feveral  branches  of  go- 
vernment fwallowed  up  together  by  the  tranfa6lic«ii 
at  St.  Cloud.  I  beg  gentlemen  to  remember  thefe 
awfiil  difpenfations  of  Providence :  we  are  informed 
by  the  fure  word  of  prophecy,  that, "  the  meafurc 
we  mete  unto  others,  ihall  be  meted  unto  us  again  j 


312 

and  if  wc  fow  the  wind,  vvc  fliall  reap  the  whirl- 
wind." 

Bear  in  mind,  I  befeech  you,  that  juftice  is  even- 
handed,  and  that  fhe  may  return  to  our  own  lips 
the  bitter  ingredients  of  this  fame  bitter  cup.  Re- 
colled,  that  times  have  been  when  a  legillature  has 
been  turned  out  of  their  hall  by  armed  foldiers ; 
nay,  (lamped  out  of  exiftence.  Let  us  not,  I  pray, 
fet  an  example  which  may  hereafter  plague  us.  Let 
us  not  be  the  firfl  independent  branch  of  the  govern- 
ment, which  fliaJl  attempt  the  independence  of  ano- 
ther co-equal  and  co  ordinate  branch.  Let  us  fol-. 
low  the  maxim  of  wifdom,  by  resisting  beginnings. 

The  gentlemen  on  the  other  fide  of  the  houfc 
have  been  peculiarly  called  i\xc  friends  of  the  peo- 
ple ;  remember  a  friend  in  need  is  a  friend  in  deed. 
Is  there  then  not  fome  one  who  will  flep  out  from 
among  them,  to  fave  this  tottering  branch  of  our 
government  from  falling  !  Reft  affured,  it  is  dear  to 
our  fellow-citizens.  Alk  them,  and  every  high- 
minded  American  will  anfwer  at  once,  fave  us  from 
the  tnjiifiice^  the  oppreffton^  and  the  miferies  of  depen- 
dent tribunals,  by  preferving  to  us,  for  ever,  the  entire 
independence  of  our  national  judges, 

Mr.  Wright  and  Mr.  Jackson  fpoke,  and 
Mr.  Anderson  made  fome  defultory  obfervations 
of  little  importance.  Mr.  Nicholas  rofe  with  the 
conftitution  in  his  hand,  intending  probably  to  make 
fome  obfervations  on  it ;  but  fliortly  after  opening 
the  book,  and  looking  at  it,  fat  down  again. 


*  513 

Mr.  Breckenridge.  Mr.  Prefidcnt,  while 
my  honourable  friend  recolle^ls  himfelf,  I  beg  leave 
to  fay  a  few  words  in  anfwer  to  an  argument  which 
has  been  much  preflcd  to-day.  I  did  not  intend  to 
rife  again  on  this  fubje^l,  efpecially  at  fo"  late  an 
hour  (about  5  o'clock)  and  I  promife  to  detain  the 
houfe  but  a  few  minutes. 

I  did  not  expeft,  fir,  to  find  the  doftrinc  of  the 
power  of  the  courts  to  annul  the  laws  of  Congrefs, 
as  unconflitutional,  fo  ferioufly  infifted  on.  I  pre- 
fume  I  (hall  not  be  out  of  order  in  replying  to  it. 
It  is  faid  that  the  different  departments  of  govern- 
ment are  to  be  cliecks  on  each  other,  and  that  the 
courts  are  to  check  the  legiflature.  If  this  be  true, 
I  would  afk,  where  they  got  that  power,  and  who 
checks  the  courts  when  tbey  violate  the  conftitution  ? 
Would  they  not,  by  this  doftrine,  have  the  abfolute 
dire£lion  of  the  government  ?  To  whom  are  they  re- 
fponfible  ?  But  I  deny  the  power  which  is  fo  pre- 
tended. If  it  is  derived  from  the  conftitution,  I 
afk  gentlemen  to  point  out  the  claufe  which  grants 
it.  I  can  find  no  fuch  grant.  Is  it  not  extraordina- 
ry, that  if  this  high  power  was  intended,  it  (hould 
no  where  appear  ?  Is  it  not  truly  aftonilhing  that 
the  conftitution,  in  its  abundant  care  to  define  the 
powers  of  each  department,  fliould  have  omitted  fo 
important  a  power  as  that  of  the  courts  to  7iullify 
all  the  atts  of  Congrefs,  which,  in  their  opinion^  were 
contrary  to  the  conftitution. 


514 

Never  were  fuch  high  and  tranfccndent  powers 
in  any  government  Tmuch  lefs  in  one  like  ours,  com- 
pofcd  of  powers  fpecially  giving  and  defined)  claimed 
or  exercifed  by  construction  only.  The  doctrine  of 
conftruftions,  not  warranted  by  the  letter  of  an  in- 
ftrument,  is  dangerous  in  the  extreme.  Let  men 
once  loofe  upon  confl:ru(flions,  and  where  will  vou 
ftop  them.  Is  the  astutia  of  Englifh  judges,  in  dif- 
covering  the  latent  meanings,  of  law  makers  mean- 
ings, not  exprelTed  in  the  letter  of  the  laws,  to  be 
adopted  here  in  the  conftruftion  of  the  conftitution  ? 
Once  admit  the  do(^rine  that  judges  are  to  be  in- 
dulged in  thcfc  astufe  and  wire-drawn  constrictions^ 
to  enlarge  their  own  power,  and  control  that  of 
others,  and  I  will  join  gentlemen  of  the  oppofition, 
in  declaring  that  the  conftitution  is  in  danger. 

To  make  the  conftitution  a  praftical  fyftem, 

this  pretended  power  jf  the  court   to  anvul  the  la'ws  of  Cffft" 

grejs  cafinot  pojfihly  exist.  My  idea  of  the  fubjeft,  in  a 
few  words,  is  that  the  conftitution  intended  a  fepa- 
ration  of  the  powers  vefted  in  the  three  great  depart- 
ments, giving  to  each  exclusive  authority  on  thejubiecis  com* 

mittedtoit.  That  thefe  departments  are  co-ordinate, 
to  revolve  each  within  the  fphere  of  their  own  or- 
bits, without  being  refponfible  for  their  own  mo- 
tion, and  are  not  to  direft  or  control  the  courfc  of 
others.  That  thofe  who  make  the  laws  are  prefu- 
med  to  have  an  equal  attachment  to,  and  intereft  in 
the  conftitution  ;  are  equally  bound  by  oath  to 
fupport  it,  and  have  an  equal  right  to  give  a  con- 


ftru£tion  to  it.  That  the  conftrii^iion  of  one  depart- 
ment of  the  powers  vefted  in  it,  is  of  higher  autho- 
rity than  the  conftruftion  of  any  other  department : 
And  that,  in  faft,  it  is  competent  to  that  depart- 
ment to  which  powers  are  confided  exclusively  to  de- 
cide upon  the  proper  exercife  of  thofe  powers : 
That  therefore,  the  legiflature  have  the  exclusive 
right  to  interpret  the  conftitution,  in  nvhat  regards  the 

laiv-making  power ^  and  the  judges  «f-^  hound  to  execute  the 

lanus  they  make  :  For  the  legiflature  Would  have  at 
leaft  an  equal  right  to  annul  the  decifions  of  the 
courts,  founded  on  their  conflru6l:ion  of  the  confti- 
tution, as  the  courts  would  have  to  annul  the  ads  of 
the  legiflature,  founded  on  ihei?-  conftru^tion. 

Although,  therefore,  the  courts  may  take  upon 
them  to  give  decifions  which  impeach  the  conftitu- 
tionality  of  a  law,  and  thereby,  for  a  time,  ob- 
flru£l  its  operations,  yet,  I  contend,  that  fuch  a  law 
is  not  the  lefs  obligatory  becaufe  the  organ  through 
ivhich  it  is  to  be  executed,  has  refufed  its  aid.  A 
pertinacious  adherence  of  both  departments  to 
their  opinions,  would  foon  bring  the  queft:ion  to 
iflfue,  in  ivhom  the  fovereign  poiver  of  .legijlation  re- 
Jided,  and  ivhofe  cGUStruciion  of  the  law-making 
power  fhould  pre'vaiL 

If  the  courts  have  a  right  to  examine  into,  and 
decide  upon  the  conftitutionality  of  laws,  their  de- 
cifion  ought  to  be  final  and  effectual.  I  afli  then, 
if  gentlemen  are  prepared  to  admit,  that  in  cafe 
the.  courts  ivers  to  declare  your  revenue^  impost ^  and 

S  s 


516  ^ 

appropriation  laws  unconstitutional y  that  they  would 
thereby  be  blotted  out  of  your  statute  book,  and  the 
operations  of  your  government  be  arrested?  It  is 
making,  in  my  opinion,  a  mockery  of  the  high 
powers  of  Icgiflation.  I  feel  humbled  by  the  doc- 
trine, and  enter  my  proteft  againfl  it.  Let  gentle- 
men confider  well  before  they  infift  on  a  power  in 
the  judiciary  which  places  the  legiflature  at  their 
feet.  Let  not  fo  humiliating  a  condition  be  admit- 
ted under  ail  authority  of  refting  merely  on  implica- 
tion and  conflru£lion.  It  will  invite  a  flate  of  things 
which  we  are  not  juflified  by  the  conflitution  in 
prefuming  will  happen,  and  which  (ftiould  it  hap- 
pen) all  men  of  all  parties  muft  deplore. 

Mr.  Morris.  I  rife  to  congratulate  this  houfe, 
and  all  America,  that  wc  have  at  length  got  our 
adverfaries  upon  the  ground  where  we  can  fairly 
meet.  They  have  now,  though  late,  reached  the 
point  to  which  their  arguments  tended  from  the 
beginning.  Here,  I  knew  they  mufl:  arrive,  and 
now  I  alk,  if  gentlemen  arc  prepared  to  eftablifli 
one  confolidated  government  over  this  country. 
Sir,  if  the  do^rine  they  advance  prevail ;  if  it  be 
the  true  do6lrine,  there  is  no  longer  any  legiflature 
in  America,  but  that  of  the  Union. 

All  the  arguments  they  have  ufed  in  this  debate 
went,  of  necelTity,  to  that  conclufion  which  is  now 
happily  avowed.  The  honourable  member  tells 
us  the  legiflature  have  ihtfupreme  and  exdufve  right 
to  interpret  the  conftitution  5  fo  far  as  regards  the 


«  317 

making  of  laws,  which,  being  made,  the  judges 
arc  bound  to  execute.  And  he  afks,  where  the 
judges  got  their  pretended  power  of  deciding  on 
the  conftitutionality  of  laws.  If  it  be  in  the  con- 
ftitution  (fays  he)  let  it  be  pointed  out.  I  anfwer, 
they  derived  that  power  from  authority  higher  than 
this  conflitution.  They  derive  it  from  the  confti- 
tution  of  man,  from  the  nature  of  things,  from  the 
necelfary  progrefs  of  human  affairs.  When  you 
have  enacted  a  law,  when  procefs  thereon  has 
been  iffued,  and  fuit  brought,  it  becomes  eventu- 
ally neceffary  that  the  judges  decide  on  the  cafe 
before  them,  and  declare  what  the  law  is.  They 
muft,  of  courfe,  determine  whether  that  which  is 
produced  and  relied  on,  has  indeed  the  binding  force  of 
law*  The  decifion  of  the  fupreme  court  ?'/,  and, 
of  neceiSty,  mufi  be  final.  This,  fir,  is  the  prin- 
ciple, and  the  fource  of  the  right  for  which  we 
contend. 

But  it  is  denied,  and  the  fupremacy  of  the  le- 
giflature  infilled  on.  Mark  then,  I  pray,  the  refult. 
The  conflitution  fays,  no  bill  of  attainder,  or  ex  poft 
fa£lo  law  fliall  be  paffed,  no  capitation  or  other 
dire£l  tax  fhall  be  laid,  unlefs  in  proportion  to  the 
cenfus  or  enumeration  to  be  taken,  no  tax  or  duty 
fliall  be  laid  on  articles  exported  from  any  flate, 
no  preference  Ihall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  ftate  over 
thofe  of  another.  Suppofe  that  notwithflanding 
thefe  prohibitions,  a  majority  of  the  two  houfcs 


518  A 

fhould  Cwith  the  Prefident)  pafs  fuch  laws.  Sup- 
pofe  for  inllance  that  a  capiration  tax  (not  war- 
ranted by  the  conftitution;  or  a  duty  on  exports 
were  impofed.  The  citizen  refufes  to  pay.  But 
courts  dependent  on  the  will  and  pleafure  of  the  le- 
giflature  are  compelled  to  enforce  the  coUcftion. 
Shall  it  be  faid,  that  there  is  an  appeal  to  the  fu- 
premc  court,  ^ir,  that  appeal  is  fubject  to  fuch  ex- 
ceptions  and  regu'ations  as  Congref^  Ihall  make.  Con- 
grefs  can  therefore  defeat  the  appeal,  and  render 
iinal  the  judgment  of  inferior  tribunals  fubje^ted  to 
their  abfolute  control.  Nay,  fir,  to  avoid  all 
poffible  doubt  or  queflion,  the  honourable  member 
laft  up,  has  told  us  in  (o  many  words,  that  the  teglf- 
lature  viay  decide  excluftvely^on  the  conjlitution^  and  that  the 
judges  are  hound  to   execute  the  laivs  nvhich  the    legijlature 

en  hi.  Examine  then  the  ftate  to  which  we  arc 
brought.  If  this  doftrine  be  fuflained  (and  it  is 
the  fair  logical  deduction  from  the  premifes  laid 
down)  what  poffible  mode  is  there  to  avoid  the 
conclufion  that  the  moment  the  legijlature  9f  the  Union 
declare  the tnf elves  fuprcme^  they  become  fo.  The  analo- 
gies fo  often  alTumed  to  the  Britifli  parliament  will 
then  be  complete.  The  fovereignty  of  America  will  no 
longer  rejide  in  the  feople^  but  in  the  Congrefs,  and  the  conjti- 
tutjon  is  nvhAtever  they  choif''  to  make  it. 

I  faw  the  end  to  which  ihofe  arguments  went, 
but  I  would  not  throw  it  out  to  the  people.  Gen- 
tlemen will  however  recolle*^,  that  early  in  this  de- 
bate I  prayed  them  to  paufc  and  confide r.     I  men- 


319 

tioned  to  them  without  this  bar  the  rcfult  of  their 
doftriue,  and  yefterday  I  warned  them  to  beware 
of  deciding  on  abftraft  propofitions.  But  they  in- 
fifted  on  the  decifion,  and  they  ftill  perfill ;  let  me 
then  a/k  what  fafety  is  left  for  the  ftates  ? 

Experience  under  the  old  confederation  had 
fbewn  that  applications  made  by  Congrefs  to  large 
communities  were  nugatory,  and  that  to  carry  on 
tlie  bufmefs  of  the  national  government,  it  fliould 
be  inveiled  with  a  right  of  applying  direftly  to  in- 
dividuals. But  then  the  danger  that  it  might 
fwallow  up  the  fovercignty  of  the  ftates  became 
evident.  To  provide  againft  that  danger,  the  con- 
ftitutional  doctrine  was  eftabliflitd,  that  no  power 
fhould  be  excrcifed  by  Congrefs  but  fuch  as  was 
■  exprefsly  given,  or  neceffarily  incident,  and  as  a  far- 
ther fccurity,  provifion  was  made  prohibiting  certain 
definite  a6ls.  But  of  what  avail  are  fuch  fecurities 
when  your  legiflative  authority  is  to  be  bounded 
only  by  your  own  difcretion  ? 

While  1  was  far  diftant  from  my  country,  I  felt 
pain  at  fome  things  which  looked  like  a  wifli  to 
wind  up  the  general  government  beyond  its  natural 
tone  ;  for  1  knew  that  if  America  should  be  brought  un- 
der one  consolidated  government,  it  could  not  continue  to  be  a 
repuhlic,  I  am  attached  to  republican  government 
becaufe  it  appears  to  me  moft  favourable  to  dignity 
of  fentiment  and  character.  I  have  had  opportuni- 
ties to  make  the  comparifon.  But  if  a  confolida- 
ted  government  be  eftablifhed,  it  cannot  long  be 


320 


republican.  We  have  not  the  materials  to  conftru£l 
even  a  mild  monarchy.  If,  therefore,  the  dates  be 
deftroyed,  we  mufl:  become  the  fubje^s  of  defpotifm. 

It  may  perhaps  be  faid  that  all  judges  are  bound 
by  oath  to  fupport  the  conftitution.  But  I  a/k  how 
is  that  to  be  done  ?  Their  power  over  your  laws  is 
denied,  and  when  once  it  is  eftabliflied  that  you,  and 
you  alone,  are  the  legitimate  interpreters  of  the  con- 
ftitution, they  muft  be  bound  by  yotir  conftru6lion. 

Gentlemen  may  flatter  themfelves  that  the  dan- 
ger from  this  quarter  is  remote  or  ideal.     I  know 
that  fo  long  as  peace  fliall  lafl:,  the  ftates  will  be  the 
general  favourites ;  becaufe  they  offer  numerous  ob- 
jefts  to  gratify  little  ambition,  but  no  fooner  ftiall 
this  country  be  involved  in  war,  than  all  men  will 
look  up  to  the  national  government  for  patronage 
and  proteftion.  Having  then  the  command  of  a  large 
military  force,  it  muft,  under  the  conftruftion  now 
fet  up,  become  fuprcme.       Remember  that  the 
old  Congrcfs  conferred  (without  authority)  di^ato- 
rial  power  over  a  large  extent  of  country,  and  that 
it  was  cxercifed  and  fubmittedto  without  oppofi- 
tion.     Gentlemen  in  this  Houfe  reprefent  the  fo- 
vcreignty  of  the  ftates.     I  now  call   upon  them. 
Are  they  ready  to  proftrate  that  fovereignty  at  the 
feet  of  the  general  government?  I,  fir,  on  the  part 
of  the  ftate  of  New- York  beg  leave  to  enter  my 
folemn  proteft. 

Mr.  Jackson.     Mr.  Prefident,  the  gentleman 
from  New- York  really  frightened  me,  for  there  is 


321 

nothing  I  fear  fo  much  as  a  confolidated  govern- 
ment in  America.  I  think  as  he  does,  fir,  that 
the  moment  it  takes  place  there  is  an  end  to  our  li- 
berty. But  upon  reflection,  I  think  that  gentleman 
has  raifed  an  alarm  without  foundation  :  for  he 
fays,  fir,  that  if  the  Congrefs  fliould  pafs  laws  in- 
juring the  ftates,  the  inferior  courts  would  execute 
them,  becaufe  they  are  to  be  dependent  upon  the 
will  of  Congrefs  :  but,  fir,  if  the  gentleman  will 
look  at  the  conftitution,  he  will  find  it  is  there  faid, 
in  the  fecond  feftion  of  the  third  article,  "  In  al! 
"  cafes  aifefting  ambaffadors,  other  public  minifters 
*'  and  confuls,  and  thofe  in  which  a  fl:ate  fliall  be  a 
"  party,  the  fupreme  court  fball  have  original  jurif- 
"  diftion.  In  all  the  other  cafes  before  mentioned,  the 
*'  fupreme  court  fliall  have  appellate  jurifdidion  both 
"  as  to  law  andfacl.^*  The  gentleman  therefore  may 
difmifs  his  fears,  as  to  what  may  be  done  by  the 
inferior  courts,  for  there  is  always  an  appeal  to  the 
fupreme  court.  (Mr.  Jackson  then  paid  fome  com- 
pliments to  the  prefent  adminiftration,  inveighed 
againfl:  the  fedition  law,  and  that  by  which  the 
Prefident  might  fend  foreigners  out  of  the  country, 
&c.  &c.  he  afterwards  faid  :  )  I  have  always  confi- 
dered  the  independence  of  the  fevcral  ftates  as  the 
fafeguard  of  our  liberties,  they  are  the  fixteen  pil- 
lars which  fupport  the  great  arch  of  our  empire, 
and  I  hope  that  nothing  will  ever  be  done  to  Ihakc 
them. 


322 


Mr.  Dayton.  Mr.  Prefident — What  has  fal- 
len from  the  gentleman' who  has  juft  fat  down,  re- 
minds me  of  the  llory  of  a  man  who  boldly  denied 
the  exiftenceof  a  Deity,  and  undertook  to  prove  it 
from  the  Scriptures.  He  opened  the  facred  volume, 
and  read  therein  the  words,  "  there  is  no  God."  A 
bye*ll:ander,  who  was  not  difpofed  to  take  fuch 
things  upon  trull,  took  up  the  book  and  recited  the 
whole  phrafe — "  The  fool  hath  /aid  in  bis  heart 
there  is  no  God,"  and  the  polition  of  this  daring 
infidel  vanifhed  into  air.  Upon  the  fame  frail 
foundation  refts  the  anfwer  which  has  jurt:  been 
given  by  the  lafl:  fpeaker,  to  the  irrefiflible  argu- 
ments of  my  honourable  friend  from  New- York. 
It  was  dated  by  my  honourable  friend  mod  diftinft- 
ly,  that  although  it  might  be  pretended  that  there 
■was  an  appeal  from  the  inferior  courts  to  the  fu- 
preme  court,  yet  as  that  appeal  was  fubjeft  to  fuch 
exceptions  and  regulations  as  Congrcfs  fliould  make 
it  was  in  the  power  of  Congrefs  to  defeat  it  alto- 
gether. The  gentleman  from  Georgia  has  under- 
taken to  prove,  from  the  conflitution,  that  my  ho- 
nourable friend  was  raiflaken  :  and  how  has  he 
done  it  ?  He  read  thefe  words,  "  In  all  the  other 
cafes  before  mentioned,  the  fupreme  court  fliall 
have  appellate  jurifdidlion,  both  as  to  law  and  faft  j" 
here  he  flopped,  and  grounded  his  argument  on  the 
part  which  he  had  read.  Had  he  carried  his  eyes 
to  what  follows  in  the  fame  fentence,  and  in  the 


323 


next  two  lines,  he  would  have  found  that  the  claufc 
(lands  thus :  "  In  all  the  other  cafes  before  men- 
tioned, the  fupreme  court  fhall  have  appellate  jurif- 
diftion,  both  as  to  law  and  faft,  -with  fuck  exceptionsy 

and  under  fuch  regulations  as  the  Ccngrefs  Jfjall  makey'  be- 
ing precifely  what  the  gentleman  from  New- York 
had  ftated,  and  what  the  gentleman  from  Georgia 
had  thought  proper  to  contradift. 

But,  fir,  the  obje£l  of  the  lad  fpeaker  was  not 
the  fingle  one  of  making  an  impreffion  by  a  partial 
quotation  from  the  conftitution.  He  faw  the  deli- 
cate, dangerous  and  alarming  ground,  upon  which 
the  member  from  Kentucky,  who  had  been  the 
prime  mover  of  this  meafure,  and  the  mouth-piece 
of  his  party,  had  placed  the  fubjeft,  and  he  was 
defirous  of  diverting  us  who  are  in  the  oppofition, 
from  exhibiting  thofe  newly  profeiTed,  (although 
fecretly  harboured)  doftrines,  in  their  true  colours. 
Their  deformity  and  dangerous  tendency  have, 
however,  been  fo  ably  and  ftrikingly  difplayed,  by 
the  honourable  gentleman  from  N6w-York,  that 
they  cannot  fail  to  make  a  ferious  impreffion  on  the 
public  mind.  And  whatever  may  now  be  faid  or 
concealed,  it  muft  hereafter  be  underjflood,  that 
upon  the  fuccefs  of  this  meafure,  depended  one  of 
the  moft  precious  provifions  of  our  conftitution. 

The  queftion  was  then  taken  on  the  final  paf- 
fage  of  the  bill : 

Tt 


> 

YEAS. 

^MefTrs.  Andcrfon, 

MefTrs. 

Franklin, 

Baldwin, 

Jackfon, 

Bradley, 

Logan, 

Breckenrldge, 

S.  T.  Mafon, 

Brown, 

NichoUs, 

Cocke, 

Stone, 

Eliery, 

Sumptcr,  and 

T.  Fofter, 

NAYS. 

Wright — 1 6. 

Mcflrs.  Chipman, 

MeiTrs 

Ogden, 

Colhoun, 

Olcott, 

Dayton, 

Rofs, 

D.  Fofter, 

Sheafe, 

Hillhoufe, 

Tracy, 

■  Howard, 

"VVclIs,  and 

J.  Mafon, 

White — 15. 

Morris, 

FINIS. 


3  5  63      7 


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